Geeklawyer awaits with some interest the House of Lords decision on Mrs A’s claim that she should recover damages from Iorworth Hoare who raped her in 1989 when she was 59. She didn’t sue at the time on the basis he wasn’t worth anything. Good advice at the time; but he in 2004 he won £7 million (is there anyone in jail who isn’t winning the lottery? It seems to be mainly convicts & chavs who win - and Geeklawyer really does know a few middle class people who pay the Dumb Tax).
In 2005 the Court of Appeal, quite properly, said to her that the limitation period of 6 years under the Limitation Act 1980 was thoroughly expired, it was bound by Stubbings v Webb [1993] AC 498, and also that the Human Rights Act 1998 was passed after the incident thusly not aiding in any helpful interpretation of the Act.
As the cliche goes ‘hard cases make bad law’. And this is about as hard as it gets. It always irritates Geeklawyer (not exactly fucking hard, that’s a given) when the press talk about ‘loopholes’ in the law but which are, in reality, carefully developed policy objectives: repeated news stories about squatters getting title to a property after 12 years is always a ‘loophole’ when it manifestly isn’t. Likewise, the 6 year limit is a limit for a good purpose. A defendant is entitled to raise a fair defence, which necessarily entails frail human memory and a documentary trail. In a less severe case where, say, D broke someones jaw when he was 19 and his victim 10 would it be ‘fair’ to say that when D came into £20k at the age of 85 C should be able to take a pop at him? Doubtful and a vague description of allowing a claim “where it is equitable to do so” as is in the legislation already is uncomfortably vague - there needs to be an end to litigation and also an end to it’s shadow.
Geeklawyer would be happy to see the HoL rule for Mrs A on this one but it might have a bad knock-on effect if not confined to its facts. Hopefully the Government will look at the Law Commission report on this topic.
Couldn’t she have sued him at the time and then had a claim againt any possible future earnings? In other words, she sues him in 1989, but he doesn’t have the money to pay, then when he comes into money, he’s got to pay her first?
Nice work for the lawyers-I hope this unfortunate woman isn’t paying them.
Generally, you can attach against earning or property - the difficulty is that he probably lived in council property so attaching against property wouldn’t work; and the jail sentence would mean no earnings for the next X years, so you’d need a conditional order of some sort staying attachment until his release from prison. Would a court make such an order? I’d think it would run the risk of the court saying ‘no’ on the basis that it was, at that stage, no more than an ineffective gesture and/or unreasonable to the Defendant (though he’d be lucky to get that sympathy in most civil courts). Not sure though as I’ve never come across a similar situation myself.
james: I’d be a bit surprised if she was paying, or paying much. It smells of pro-bono work to me.
>Likewise, the 6 year limit is a limit for a good purpose. A defendant is entitled to raise a fair defence, which necessarily entails frail human memory and a documentary trail.
If that’s correct, why isn’t there a statute of limitations for criminal cases? Human frailty isn’t any less of an issue when a crime has been committed is it?
Either a statute of limitations should apply to all cases, if indeed it is fair, or not at all.
It’s a good point Jack and in many jurisdictions there is a limitation period which varies with the seriousness of the offence: shoplifting may have a period of 3 years while murder may not have a limitation.
I’m not familiar with the reasons for the difference and I can’t be arsed to research it but I suppose it’s a moral thing: crime is really bad and affects everyone plus it would be unacceptable to the Daily Mail. In a civil matter only one person gets screwed; forcibly in Mrs A’s case.
I would also suppose that in the case of crime the CPS would act as a filter where the facts are so old that a fair trial wouldn’t be possible (or is that a civil practitioner being comically naive?)
Would she be liable for costs if she lost?
Dear Jack,
The way in which limitation works in a criminal case is designed to deal with the individual case. If a particular Defendant cannot have a fair trial because, for example of the lapse of time and its effect on memory and witnesses then the Judge is entitled to stay the case. The policy presupposes that the public interest lies in prosecuting, as Mr Greeklawyer has said.
As a matter of public policy Parliament has decided that Civil cases should be the subject of an overall rule that no case hsould proceed after a set time (that time depending on the precise nature of the case) with the ability for the Court to make limited exceptions in the interests of justice. In other words, the mirror image of the criminal jurisdiction.
One can disagree with the specifics, but I do think that the system is, on the whole, fair.
Regards,
VM
Thanks for a better informed comment VM.
Seen today’s Times?
Scratch that, have an authoritative source