Beware HRA discretion?: Rafiq v Thurrock Borough Council  EWHC 584 (QB)
Emelia Bezant-Gahan and Tom Lambourne examine the dangers of relying on the court’s discretion to extend limitation under s7(5) of the Human Rights Act 1998
The High Court dismissed an application for damages under the Human Rights Act 1998 which was commenced outside the statutory limitation period.
The claimant in this case was a Kurdish Iraqi immigrant who had an application for asylum refused by the defendant, Thurrock Borough Council, in May 2017. After failing the defendant’s review process, the claimant was awarded a final weekly allowance and a travel warrant to go to the Home Office and apply for residual support before returning to Iraq.
The claimant was later told the necessary referral from the council had not gone ahead. As a result, he became homeless for a period of one week. On 15 August, the claimant’s solicitors sent the defendant a letter before action, challenging the decision to evict the claimant. The council then reinstated accommodation and support.
Over two years later, the claimant’s newly instructed solicitors advised he could have a claim for damages against the council for making him homeless. They corresponded with the defendant and filed a claim at the County Court on 18 November 2019. It was issued 6 days later.
Over the course of the following year, the deadline for service of the particulars of claim was extended. The defendant then made an application on 7 October 2020 for the claim to be struck out on the grounds that limitation had expired. The defendant later filed a defence on 20 January 2021, pleading a breach of the statutory limitation period. The claimant subsequently made an application for an extension of time for limitation on 8 February 2021.
The opposing applications both turned on the single issue of timing.
The claim focussed on breaches of Article 3 and Article 8 of the Human Rights Act 1998, hereon in ‘the Act’.
Under Article 3, the claimant claimed the defendant had subjected him to inhumane and degrading treatment. The claimant relied upon the decision of the House of Lords in Limbuela v SSHD  1 AC 396 as authority being made homeless, even for a short time period, can constitute inhumane and degrading treatment.
Under Article 8, the claimant claimed the defendant had unjustifiably interfered with his right to a private home life by making him homeless (Limbuela v SSHD, at ).
s7(1) of the Act allows a prospective victim to bring a claim against an authority for breaches of human rights. s7(5) requires the proceedings be brought within one year of the act being complained of taking place, or a longer period if the court or tribunal considers it to be equitable.
The discretion referred to at s7(5) is case specific and was applied in the case of P v Tameside MBC  1 WLR 2127, where the court held claims brought under the Act should be dealt with both swiftly and economically (P v Tameside MBC  1 WLR 2127, at ).
Further, the court also applied its discretion in the case of Alseran & Ors (Iraqi Civilian Litigation) v MoD  EWHC 3289 (QB), where it was held “evidential prejudice” to a defendant, where delay means that witnesses cannot be traced, or memories have faded, may militate against the fairness of granting an extension.
The findings in Rafiq v Thurrock Borough Council  EWHC 584 (QB) built upon the decisions in both Tameside and Alseran.
Analysis and findings
When assessing the overall merits of the case, Mrs Justice Collins Rice found there to be no evidence the defendant had considered the practical difficulties the claimant would face in returning to Iraq. The court relied upon the decision in Clue v Birmingham City Council  1 WLR 99 (at -). Where the only potential impediment to an unsuccessful asylum seekers return is practical in nature, such as being unable to fund their return, it is open to the authority to avoid breach of human rights by arranging transport back to country of origin. Mrs Justice Collins Rice held there was no evidence the defendant considered this issue. On that basis, it was accepted there was a prima facie case Mr Rafiq was rendered homeless by the withdrawal of support and accommodation by the defendant.
Mrs Justice Collins Rice considered the impact of the delay upon the circumstances of the case. In Tameside, the court was clear: “the court must take into account that the primary limitation period under the Act is one year, not three years” and regarded an 18-month delay as “considerable.” In this case, the application for an extension of time was not brought until February 2021, months after limitation had been pleaded by the defendant, and more than two and a half years after the expiry of the primary limitation period. The period in issue was well over double the time for bringing a claim as of right – and therefore, Mrs Justice Collins Rice considered the delay to be: “considerable.”
The claimant’s position was he was not aware (until he approached his current solicitors about a different matter) he might have a damages claim. He also said even if the solicitors were in a position to, and should have, issued a damages claim at the time, that is not something which should be held against him as there is: “no rule of law to visit the faults of the lawyers upon the claimant” (Corbin v Penfold QBENI 1999/1257/A2 at  and ). Weighing up the facts presented, Mrs Justice Collins Rice did not accept solicitor negligence or inability to instruct at the time as good explanations for the delay. She had been given no material on which she could place real weight that the claimant's solicitors failed to act in his best interests at the time. Mrs Justice Collins Rice concluded it would be wrong, and indeed inequitable, to speculate further on this point. She concluded the difficulty of unpicking all of the evidence at what was four and a half years removed from the facts illustrated the purpose of a short primary limitation period.
With further reference to the delay, the defendant, relying upon the decision in Alseran, argued they would suffer substantial evidential prejudice in defending the claim, as key witnesses from whom may they have taken statements were no longer in employment. Mrs Justice Collins Rice took into account witnesses simply having left the defendant’s employment was not a particularly weighty reason for not obtaining evidence. However, she did give weight to the fact the defendant would face the prospect of significant adverse inferences being drawn from the relatively scant disclosure, and the ability to address that with witness evidence may be compromised to at least some degree. In addition, she recognised the difficulty they would face in remembering the precise circumstances of decisions made more than four and a half years ago (at ).
The court also considered the effects of the delay upon the reliability of the medical evidence. Mrs Justice Collins Rice gave significant weight to what was likely to be the prohibitive difficulty for the defendant in obtaining robust medical evidence now, on the question of the impact of the homelessness on the claimant’s health. Mrs Justice Collins Rice found the defendant would experience significant evidential prejudice as a result.
The court considered proportionality – and looked both at the value of the claim, as well as the importance of the rights at stake. The Claimants valuation of damages relied upon the guidance set in DSD v Commissioner of Police of the Metropolis  1 WLR 1833. Three broad categories are envisaged:
(a) where a court wishes to make a 'low or nominal' award (up to about £8,000);
(b) 'routine' violation of Art.3 with no serious long term mental health issues and no unusual aggravating factors (in the region of £8,000 to £20,000); and
(c) (from £20,000 to £100,000 or more) where there are 'aggravating factors' such as medical evidence of material psychological harm.
The claimant valued his claim somewhere between the second and third categories.
In contemplating the claimant’s valuation, in terms of culpability, Mrs Justice Collins Rice stated the claim, at most, was for the defendant’s failure to satisfy itself properly as to the absence of: “practical obstacles” to the claimant's departure to Iraq, rather than anything more systemic or reprehensible aggravating the basic fact of making him street homeless. As a result of the delay, there would be real doubt about how far a trial court would be able to rely on medical evidence to find significant aggravation on the facts of this case. Mrs Justice Collins Rice therefore valued damages at the lower end of the scale falling somewhere in-between the first and second categories set out in the DSD v MPC guidance.
In addition, Mrs Justice Collins Rice also considered the proportionality of the claimant’s costs in the case, which had exceeded £30,000. With further reference to Tameside, the court emphasised how the balance of costs is a factor that must be considered. Upon application, Mrs Justice Collins Rice held the substantial expense to the public purse which would be involved in establishing how much additional vindication of his rights to which the claimant was entitled, beyond that which, on any view, he had already secured to at least some extent, was not in proportion to the likely degree of additional vindication which was realistically capable of being achieved.
Mrs Justice Collins Rice further found the defendant would experience significant evidential prejudice as a result of the delay – and this outweighed the strength of any equity in favour of granting the claimant's claim for damages. The defendant would face unfairness, prejudice and administrative burden if an extension of time were to be allowed. The defendant’s application to strike out the claim therefore succeeded.
The findings demonstrate the court is willing, in certain circumstances, to choose not to exercise their discretion in extending the limitation period for claims brought under the Act. In instances where the prejudice likely to be suffered by the defendant is severe, owing to an omission on the claimant’s part, as in this case, a defendant may be successful in applying for the claim to be struck out on the limitation point alone.
Had the claimant both advanced the claim for damages and made the application for extension earlier, it is possible the court may have found differently, given the tragic circumstances in which the claimant found himself, in being rendered street homeless. This is a point of which to be mindful in cases where practitioners consider the claimant has unreasonably delayed the process, as it could be raised in an application to strike out on the grounds of limitation at a later date, once proceedings are issued. An important point is the claimant was able to argue a delay in initially bringing the claim can be explained by his lack of awareness he had an actionable cause, but he would not be able to blame this for the subsequent delays in the defendant being provided with a properly pleaded case thereafter.
A careful case-by-case analysis will need to be undertaken by practitioners as to the likely prejudice caused by any delay on the claimant’s part in presenting their case – and refer to this extensively in any application to strike out the claim. It will not be enough simply to aver that the matter is brought out of time with reference to statute – real prejudice will need to be demonstrated and any strike out application will be highly fact-specific.
Practitioners should also be mindful of the factual merits of the case when evaluating damages under the guidance set out in D v MPC. There is no doubt the overvaluation of damages, combined with the disproportionate costs, time delay and lack of supporting medical evidence, gave weight to the court’s decision to strike out the claim on the grounds of proportionality.
Ultimately, this decision may lead to a stricter timetable being kept by claimant practitioners, given the inability to rely on the court finding their application for an extension to be just and equitable in the circumstances. Defendant practitioners may find themselves at risk of claims being issued early, if pre-litigation responses are not provided within the timeframe set out by the claimant at the outset. Given the increased costs exposure of proceedings being issued, it will be a point to watch closely for defendants. It is clear that the courts do – and indeed should – consider access to justice and for claimants is extremely important. However, for defendant practitioners everywhere this will no doubt be a welcome decision. The court has acknowledged and reaffirmed the principles in Tameside and Alseran that access to justice for the claimant should not come at the cost of severe prejudice to the defendant – hence reminding litigators everywhere the dangers of relying on the court’s discretion where a limitation period has expired.
Emilia Bezant-Gahan is a solicitor, and Tom Lambourne is a trainee solicitor, both with the public services law team at Plexus Law: plexuslaw.co.uk