| LIMITATION OF ACTION — Human Rights Act claim — Application to strike out — Defendant failing to apply within 14 days of filing acknowledgment of service — Whether thereby precluded from relying upon limitation — Human Rights Act 1998, s 7 — CPR Pt 11
Dunn v Parole Board [2008] EWCA Civ 374; [2008] WLR (D) 110
CA: Smith, Thomas and Lloyd LJJ: 16 April 2008
In the context of CPR Pt 11, the limitation provisions within s 7(5) of the Human Rights Act 1998 provided a defence to a claim rather than going to jurisdiction, so that a failure to apply to strike out within 14 days of acknowledging service did not preclude a defendant from applying to strike out a claim on the basis of limitation.
The Court of Appeal so stated when dismissing the appeal of the claimant, Peter Dunn, from a decision of Judge Darroch, sitting in the Norwich County Court on 29 March 2007, striking out his claims against the defendant, The Parole Board, under the Human Rights Act 1998 and for false imprisonment arising out of his detention after recall to prison from that part of his sentence he was serving on licence in the community. There had been delay in the management of the case by the defendant. The grounds of appeal were that: (i) the court should have determined under CPR Pt 11 that the filing of an acknowledgment of service by the defendant precluded it from arguing the issue of limitation under s7(5) of the 1998 Act; (ii) the judge erred in finding that the claim for false imprisonment had no real prospect of success; (iii) the case was appropriate for the court to extend the period for bringing the claim under s7(5) of the 1998 Act.
THOMAS LJ said, as to ground (i), that, in contending that since the defendant had not made an application under CPR Pt 11 to strike out the claims within 14 days of filing its acknowledgment of service it had lost its right to rely on the limitation provisions in s 7 of the 1998 Act, the claimant relied on Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203. However, that authority was distinguishable: there, service of the claim form was necessary to give the court jurisdiction; but, here, filing of the acknowledgment of service was not, and the court had jurisdiction where proceedings had been commenced and served and the defendant did not seek to contest the jurisdiction. The defendant sought to rely on s 7(5) as providing a defence to the claim, contending that the claimant had no reasonable grounds for bringing it and no real prospect of success; and the limitation provisions provided a defence and did not go to jurisdiction, so that CPR Pt 11 had no relevance to the defendant’s strike out application. As to ground (ii): the claimant might have a claim for failure to conduct a speedy review but that did not make the imprisonment unlawful so as to give rise to a claim for false imprisonment. A distinction was to be drawn between action or inaction by the defendant which was unlawful, in the sense that it was not acting in accordance with the law, and action that had the consequence of rendering detention of a prisoner unlawful: see R (Noorkoiv) v Secretary of State for the Home Department [2002] 1 WLR 3284, paras 61–62, per Lord Woolf CJ. In the instant case, although there might be a real prospect of showing that the failure of the defendant to consider the reference of his recall speedily and in accordance with fair procedures was unlawful, that would not have the consequence that there was unlawful detention: the claimant was lawfully detained in prison under s 39 of the Criminal Justice Act 1991. It would only be if the delay were to become of a considerable magnitude that it might be possible to contend that the detention had become unlawful under art 5(1) of the Convention on Human Rights despite the clear provisions of s 39(6) of the 1998 Act referable to a determinate sentence; but the facts did not make out such a case. As to ground (iii): looking in such cases to the discretion to extend time beyond the one-year statutory limit where “equitable having regard to all the circumstances” (s 7(5)(b) of the 1998 Act), an approach similar to that in Hyman v Rose [1912] AC 623 was to be adopted, viz the court should not add to or qualify, or put any gloss upon, the statutory words, and it should not list or indicate which factor might be more important than another. On the facts the judge had exercised his discretion correctly in declining to extend time.
SMITH LJ and LLOYD LJ gave judgments concurring in the result.
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