Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22799/93

by I.B.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 10 August 1993 by

I.B. against the United Kingdom and registered on 21 October 1993 under

file No. 22799/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

31 May 1994 and the observations in reply submitted by the

applicant on 8 December 1994;

- the Commission's decision of 4 July 1995 to request further

observations from the respondent Government in relation to

Article 6 taken with Article 14;

- the further observations submitted by the respondent Government

on 16 August 1995 and the observations in reply submitted by the

applicant on 20 October 1995.

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1967 and resident

in Dolgellau. He is represented before the Commission by Mr. Davies

Sykes, a solicitor practising in Y Bala, Gwynedd.

The facts as submitted by the parties may be summarised as

follows.

A. The particular circumstances of the case

At the age of 11, the applicant was taken into the care of the

local authority. He spent approximately six months in a children's home

in Wrexham. During this period, the applicant was subjected to anal

intercourse and was indecently assaulted by three members of staff.

Those members of staff and one other are now facing trial on criminal

charges following a police investigation into the children's home. The

applicant is to appear as a prosecution witness as are other children

who were resident in the home at the relevant time.

The police investigations were commenced in January 1992, during

which the applicant was compelled to relive memories he had in general

succeeded in suppressing. Only in about August 1992 did he become

psychologically capable of contemplating the institution of legal

proceedings. Further, he was unlikely to have appreciated before August

1992 that (i) he had suffered significant physical and/or psychological

injury, and (ii) that such injury was attributable in whole or in part

to the sexual abuse that he had suffered aged 11. Following the

judgment of the House of Lords in the case of Stubbings v. Webb on

16 December 1992, it became evident that any such action would be

statute-barred.

The applicant subsequently pursued an application to the Criminal

Injuries Compensation Board and was offered £5000 compensation for the

injuries he had suffered while in the care of the local authority. The

applicant is currently challenging the level of the award.

B. Relevant domestic law

1. The Limitation Act 1980 ("the 1980 Act")

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 likely to be less cogent than if

the action had been brought within the time allowed by

section 11 or (as the case may be) by section 12;

(c) the conduct of the defendant after the cause of action

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..."

2. Stubbings v. Webb and Another

On 16 December 1992, the House of Lords in the case of Stubbings

v. Webb, held that claims arising from the intentional infliction of

injury did not fall within the ambit of section 11 of the 1980 Act and

were consequently outside of the scope of sections 14 and 33 of that

Act. Victims of intentional infliction of injury are therefore unable

to obtain the benefit of the more flexible limitation periods available

to victims of unintentional injury. In reaching that decision, the

House of Lords overruled the Court of Appeal decision which was based

on previous Court of Appeal precedent (Letang v. Cooper 1965 1 QB 232).

COMPLAINTS

The applicant complains under Article 6 of the Convention that

he is denied access to court to take a civil action for damages in

relation to incidents of sexual abuse to which he was subjected as a

child. He submits that intentionally inflicted injuries may give rise

to latent psychological and physical damage that should be treated in

the same way as latent damage arising out of accidental injuries. He

further complains that the limitation period for someone of unsound

mind does not start to run until that person ceases to be of unsound

mind, however long a period after the relevant harm was done.

In his observations in reply the applicant also complains under

Article 3 of the Convention that the abuse which he allegedly suffered

in the children's home constituted inhuman and degrading treatment. He

further complains in those observations that he did not have an

effective domestic remedy as guaranteed by Article 13 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 August 1993 and registered

on 21 October 1993.

On 2 March 1994, 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 30 May 1994,

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

applicant's observations in reply were submitted on 8 December 1994

after three extensions in the time-limit.

The applicant was granted legal aid on 18 October 1994.

On 4 July 1995 the Commission invited the Government to submit

written observations in relation to Article 6 taken with Article 14 of

the Convention. These further observations were submitted on 16 August

1995. The applicants observations in reply were submitted on

20 October 1995.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention that the abuse to which he was subjected when he was in the

children's home constituted inhuman and degrading treatment. Article

3 (Art. 3) of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman and degrading

treatment or punishment".

The Commission however is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision as Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter... within

a period of six months from the date on which the final decision was

taken." It is established case-law that the six month period may begin

to run either from the date of a "final decision" taken in the

exhaustion of an effective and suffient domestic remedy or from the

date of the act or decision complained of where such act or decision

finally determines the applicant's position on the domestic level (eg.

No. 9599/81 dec. 11.3.85 D.R.42 p. 33).

The Commission notes that the applicant had the requisite

knowledge and was psychologically capable of taking proceedings

relating to harm suffered as a result of the abuse, at the latest, in

August 1992. On 16 December 1992 the decision of the House of Lords

in the case of Stubbings v. Webb confirmed that the provisions of the

Limitation Act 1980 barred him from taking civil proceedings in

respect of injuries resulting from that abuse. The Commission considers

that the judgment of the House of Lords must be regarded as the "final

decision" for the purposes of Article 26 (Art. 26) of the Convention.

The applicant's complaint under Article 3 (Art. 3) was not introduced

until his observations in reply on 8 December 1994. An examination of

the case does not disclose the existence of any special circumstance

which might have interrupted or suspended the running of that period.

This complaint was therefore introduced more than six months

after 16 December 1992 and must be rejected as out of time pursuant to

Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicant complains about being denied access to court as a

result of the limitation period applicable to claims arising out of

intentional injury as laid down in the 1980 Act. He submits that cases

concerning psychological and physical damage caused by the intentional

acts of another, can give rise to the same justifications for the

extension of time limits as cases of unintentional injury, that is

where the limitation period can run from "date of knowledge" and can

be extended in the interests of justice. He invokes Article 6 para. 1

(Art. 6-1) of the Convention. The Commission also invited the parties

to address issues which might arise under Article 14 of the Convention

in conjunction with Article 6 (Art. 14+6).

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

"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 14 (Art. 14) 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 Government argues that the present application has been made

out of time, the relevant decision for the purposes of the commencement

of the six month period being the judgment of 16 December 1992 of the

House of Lords in the case of Stubbings v. Webb.

The applicant submits that the decision of the House of Lords in

Stubbings v. Webb of 16 December 1992 merely clarified the meaning of

the 1980 Act as regards the limitation period applicable in cases of

intentional injury and that the limitation on his access to court by

the provisions of the 1980 Act represents a continuing situation.

The Commission notes that prior to the House of Lords judgment

in the case of Stubbings v. Webb it was accepted that the limitation

period was the same in cases of intentional and unintentional injury

to the person. It considers that the House of Lords judgment which

ruled authoritatively on the proper statutory interpretation of the

applicable limitation periods must be considered as determining the

position of the applicant in relation to any existing rights of action

and consequently must be taken as the "final decision" for the purposes

of Article 26 (Art. 26) of the Convention. It does not find that the

applicant can claim to be the victim of a continuing breach of the

Convention in the circumstances of this case.

The Commission recalls that the applicant introduced his

complaints concerning the operation of the limitation period on his

claim on 10 August 1993, that is more than six months after the

decision of the House of Lords on 16 December 1992. It has found no

indication of any special circumstances which might have interrupted

or suspended the running of the six month period.

It follows that the applicant has failed to submit these

complaints within the requisite six month period and this part of his

complaint must therefore be rejected pursuant to Article 27 para. 3

(Art. 27-3) of the Convention.

3. Insofar as the applicant complains under Article 13

(Art. 13) of the Convention in relation to his complaints under

Article 3 (Art. 3) and Article 6 para. 1 (Art. 6-1) of the Convention,

the Commission must also dismiss these complaints as having been

introduced out of time and reject them pursuant to Article 27 para. 3

(Art. 27-3) of the Convention for the same reasons as set out above.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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I.B. v. THE UNITED KINGDOM

I.B. v. THE UNITED KINGDOM

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