Issue 41 June 2008 - Human Rights Stop Press
A v Hoare [2008] 2 W.L.R. 311 (discussed in issue 40) has been hailed as a liberalisation of the approach to be taken in the exercise of discretion to allow late claims for damages by the alleged victims of child abuse to be brought, even although prima facie time barred, and where the victim may even have had knowledge that they might have a cause of action but did not pursue it until after the expiry of the timebar. A v Hoare was an English appeal in the House of Lords. In that case Lord Hoffmann said that the discretion under the English legislation enables the judge to look at the matter broadly and not have to decide the highly artificial question of whether knowledge which the claimant has in some sense suppressed counts as knowledge for the purposes of the Act. In recognising the problem of suppression of memory of the abuse the House of Lords made it easier for the victims of sexual abuse to bring claims even although they did have knowledge of the injury and wrong done to them. The Scots have not had long to wait to see how that approach might be applied to the exercise of discretion under s.19A of the Prescription and Limitation (Scotland) Act 1973. The lesson that has emerged is that the liberalisation of approach has limits and, unsurprisingly, much still depends on the fact of the case including the steps taken by the pursuers to press their claims.
In B v Murray (No.2) and Whitton v Poor Sisters of Nazareth [2008] UKHL 32, decided on May 21, the appellants (B and W) appealed against a decision of the Inner House of the Court of Session ([2007] CSIH 39, 2007 S.C. 688) affirming a ruling of the Outer House refusing them permission under s.19A to bring actions against the respondents (P) out of time. B and W claimed to have suffered physical abuse while residing at a children's home run by P during the 1960s and 70s. Assuming that they were aware of all the facts referred to in s.17(2)(a) of the 1973 Act on, or shortly after, their departure from the home, the three-year limitation period referred to in s.17(2) expired in B's case in 1984 and in W's in 1974. They consulted solicitors in 1997 after the publication of newspaper articles concerning allegations of abuse at the home, and in 2000 they raised actions in the Court of Session. P included in their defences pleas that the actions were time barred. In reply, B and W averred that the actions were raised within the triennium set out in the 1973 Act and that if, contrary to their averments, they were time barred, it would be equitable to allow them to bring their actions under s.19A of the Act.
The cases were sent to the procedure roll for a debate on those issues. Lord Drummond Young held that there should be a preliminary proof restricted to the question of whether the court should exercise its discretion in B and W's favour under s.19A. A preliminary proof was held before Lord Drummond Young, who refused to exercise his discretion under s.19A in B and W's favour. B and W argued that (1) the holding of a preliminary proof had been unfair, and the Lord Ordinary's interlocutors should be set aside and the cases sent back to the Outer House for the issue of time bar to be re-examined by means of a proof at large at which evidence would be led on all issues; and (2) Lord Drummond Young had failed to exercise his discretion in the manner required. The House of Lords dismissed the appeals. The holding of a preliminary proof had not been unfair. It was not unusual for a preliminary proof to be ordered on issues relating to time bar. If the facts were all agreed, the discretion given by s.19A might be capable of being exercised on the motion roll, but where the facts relevant to its exercise were disputed, as in this case, a proof of some kind would be necessary. A preliminary proof would normally be allowed so that these issues of fact could be decided without the delay and expense of a hearing on the merits, which might prove to be unnecessary. It did not appear that there was any dispute before the Lord Ordinary that, if an inquiry into the facts was to be ordered, it should be by way of a preliminary proof.
As for B and W's criticisms of Lord Drummond Young's exercise of his discretion under s. 19A, this relied to a great extent on A v Hoare. Lord Hope of Craighead said that these criticisms had to be seen in the context of a procedure which did not enable him to form a view as to the credibility or reliability of B and W's allegations. They were taken pro veritate for the purpose of considering where the equities lay. But a necessary consequence of that was that account had to be taken of the difficulties that would have to be faced if their credibility and reliability had to be tested in a proof on the merits in a way that was not unfair to P. B and W had asserted that Lord Drummond Young had failed to address himself to their cases as individuals, but his treatment of their evidence was an inevitable consequence of the fact that the case had not been fully Investigated. There was therefore a lack of detailed cross-examination of them about their allegations. An assessment of the truth or otherwise of their allegations, and the complex exercise of disentangling their effects from all the other surrounding Circumstances, were tasks that lay in the future. The Lord Ordinary had been right to deal with these issues at a certain level of generality. He had been in no position to do otherwise. Further, Lord Drummond Young had been entitled to reach his central conclusion, namely that the prejudice caused to P by the lapse of time in raising these proceedings, including the loss of evidence that resulted from it, was by itself a sufficient reason for not allowing the actions to be brought under s.19A.
As Lord Hope of Craighead went on to say under reference to what Lord Brown of Eaton-under- Heywood had said in A v Hoare (at paras 84-86), by no means everyone who brings a late claim for damages for abuse, however genuine his claim may be, could reasonably expect discretion to be exercised in his favour. The approach that Lord Drummond Young took to the discretion under s.19A was entirely consistent with what Lord Brown had said in that case. The Strasbourg Court has been busy as always. The following is a selection of recent decisions, three involving the United Kingdom. The first decision, the Grand Chamber decision in Burden and Burden v United Kingdom (no.13378/0S, April 29, 2008) received a considerable amount of publicity and public sympathy because of the claimed unfairness in the inheritance tax system which it threw up. The decision of the Grand Chamber to find no violation is however entirely in line with previous jurisprudence on tax matters where the Court has consistently afforded national systems a wide margin of appreciation in the way in which tax is levied. The Grand Chamber concluded that the applicants, as co-habiting sisters, could not be compared for the purposes of Art.14 to a married or Civil Partnership Act couple. It followed that there had been no discrimination and, therefore, no violation of Art.14 taken in conjunction with Art.l of Protocol No.1. The other two cases McCann v United Kingdom and Twizell v United Kingdom show the work of the Court in the fields of housing law and social security. In both cases violations were found established. The last case is an Art. 10 case from Cyprus. It shows that journalists cannot always rely on freedom of expression if their journalism is irresponsible.
Burden and Burden v United Kingdom concerned two unmarried sisters who have lived together all their lives; for the last 30 years in a house built on land they inherited from their parents. Each sister has made a will leaving all her property to the other sister. The sisters, both in their 80s, are concerned that, when one of them dies, the other will be forced to sell the house to pay inheritance tax. Under the 1984 Inheritance Tax Act, inheritance tax is charged at 40 per cent on the value of a person's property. That rate applies to any amount in excess of £300,000 for 2007-2008. Property passing from the deceased to his or her spouse or 'civil partner" (a category introduced under the 2004 Civil Partnership Act for same-sex couples, which does not cover family members living together, is exempt from the tax).
The applicants complained that, when one of them dies, the survivor will face a heavy inheritance tax bill, unlike the survivor of a marriage or a civil partnership. They relied on Art.l of Protocol No.1 taken in conjunction with Art.14.
The Grand Chamber observed that the relationship between siblings was of a different nature to that between married couples and homosexual civil partners under the United Kingdom's Civil Partnership Act. One of the defining characteristics of a marriage or Civil Partnership Act union was that it was forbidden to close family members. The fact that the applicants had chosen to live together all their adult lives did not alter the essential difference between the two types of relationship. Moreover, the Grand Chamber noted that it had already held that marriage conferred a special status on those who entered into it. The exercise of the right to marry was protected by Art.12 of the Convention and gave rise to social, personal and legal consequences.
Since the coming into force of the Civil Partnership Act in the United Kingdom, a homosexual couple also had the choice to enter into a legal relationship designed by Parliament to correspond as far as possible to marriage. As with marriage, the Grand Chamber considered that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decided to incur, set those types of relationship apart from other forms of co-habitation. Rather than the length or the supportive nature of the relationship, what was determinative was the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. Just as there could be no analogy between married and Civil Partnership Act couples, on one hand, and heterosexual or homosexual couples who chose to live together but not to become husband and wife or civil partners, on the other hand, the absence of such a legally-binding agreement between the applicants rendered their relationship of co-habitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. This view was unaffected by the fact that different rules of succession had been adopted in the 47 European countries which were members of the Council of Europe. Different countries had similarly adopted different policies regarding inheritance tax exemptions to the various categories of survivor; States, in principle, remaining free to devise different rules in the field of taxation policy.
The Court found a breach of Art.8 in the housing case of McCann v United Kingdom (no.19009 /04, May 13, 2008). Mr McCann and his ex-wife were secure tenants, under the provisions of the Housing Act 1985, of a three-bedroom house belonging to Birmingham City Council. The marriage broke down and, in April 2001, Mrs McCann asked to be re-housed on grounds of domestic violence. In August 2001 she and the children moved into another council house allocated to them in accordance with the local authority's domestic violence policy. She informed the local authority that she was giving up the tenancy and returned the keys of the house. As far as the local authority was concerned, the three-bedroom house was from then on uninhabited. In November 2001, however, the applicant moved back into the vacant house and did a considerable amount of work to renovate it.
His relationship with Mrs McCann improved and she supported his application for an exchange of accommodation with another local authority tenant, as the three-bedroom house was too big for him but he still required a home in the area so that his children could visit. In January 2002 a housing officer, having realised that the property was not in fact empty, and having taken legal advice, visited Mrs McCann and asked her to close the tenancy by signing a notice to quit. The effect of this notice under domestic law was to bring an end to the tenancy. Mrs McCann signed the notice but, a week later, requested for it to be withdrawn. In June 2002 the local authority decided, among other things, that in accordance with the domestic violence policy, the applicant would not be granted the right to accede to the former tenancy of the house and that, in any event, he had no dependants living with him and would not therefore qualify for such a dwelling.
In April 2003 the local authority's claim for possession against the applicant was dismissed. The County Court judge found that Mrs McCann had not been advised and had not understood that the notice to quit would effectively remove her ex husband's right to live in the house or exchange it for another local authority property. On appeal, however, it was found that the local authority had acted lawfully and that the notice to quit was effective despite it having been signed without an understanding of its consequences. That decision was upheld in the judicial review proceedings brought by the applicant and again on appeal. The applicant was evicted from the house on March 22, 2005.
Relying, in particular, on Art.8 (right to respect for private and family life), the applicant complained about the eviction proceedings brought against him by Birmingham City Council. He alleged, in particular, that in asking his ex-wife to sign a notice to quit, the local authority gave no consideration to his relationship with his children who stayed with him three nights a week. The Court found, as also accepted by the English courts and the parties, that the council house formerly occupied by the applicant with his ex wife as a joint tenant and where he had lived on his own from November 2001, had continued to be his "home", within the meaning of Art.8(1). It was also agreed that the notice to quit, together with the possession proceedings, had amounted to an interference with the applicant's right to respect for his home. The Court considered that that interference had been in accordance with the law and had pursued the legitimate aim of protecting them local authority's right to regain possession of property from an individual who had no contractual or other right to be there. It also aimed to ensure that the statutory scheme for housing provision was properly applied.
The Court noted that any person at risk of losing his home, which is a most extreme form of interference with the right to respect for one's home, should be able to have the proportionality of the measure determined by an independent tribunal, even if, under domestic law, the right of occupation had come to an end. The legislature in the United Kingdom had set up a complex system for the allocation of public housing which included, under s.84 of the Housing Act 1985, provisions to protect secure tenants with public authority landlords. Had the local authority sought to evict the applicant in accordance with that statutory scheme, it would have had to apply for a possession order and, in those proceedings; the applicant could have asked the court to examine his personal circumstances, including the need to provide accommodation for his children and whether his ex-wife had really left the family home because of domestic violence.
However, the local authority had chosen to bypass that statutory scheme by asking Mrs McCann to sign a common law notice to quit, which had resulted in the termination of the applicant's right, with immediate effect, to remain in the house. The authority, in the course of that procedure, had not given any consideration to the applicant's right to respect for his home.
Nor had the ensuing possession proceedings or judicial review proceedings provided any opportunity for an independent tribunal to examine whether the applicant's loss of his home had been proportionate to the legitimate aims pursued. The Court therefore concluded that, under the summary procedure available to a landlord where one joint tenant served notice to quit, the applicant had been dispossessed of his home without any possibility to have the proportionality of that measure determined by an independent tribunal, in violation of Art.8.
In Twizell v United Kingdom (no.25379/02, May 20, 2008) the applicant, Geoffrey Twizell, is a British national who was born in 1941. Mr Twizell's wife died in March 2001. The case concerned the applicant's complaint that, as a widower, he was refused Widow's Payment. He also complained that he was refused Bereavement Payment and Bereavement Allowance to which he would have been entitled under the Welfare Reform and Pensions Act 1999, introduced to level out discrimination against widowers, had his wife died after April 2001. He relied, in particular, on Art.14 and Art.l of Protocol No.1.
The Court noted that the applicant's wife had died just before the entry into force of the 1999 Act and could not therefore qualify for the newly-introduced system of Bereavement Payment and Bereavement Allowance. It noted, however, that that situation had been an inevitable consequence of the United Kingdom having reformed its social strategy policy and that the cut-off date had been reasonably and objectively justified. The Court therefore declared that part of the applicant's complaint inadmissible. However, the Court held, as in a number of cases raising a similar issue, that there had been a violation of Art.14 in conjunction with Art.l of Protocol No.1 concerning the applicant's complaint about non-entitlement to Widow's Payment and awarded Mr Twizell EUR 1,960 in respect of pecuniary damage.
In Alithia Publishing Company Ltd &Constantinides v Cyprus (no.17550/03, May 22, 2008) the applicants were Alithia Publishing Company Ltd, the publisher of the daily morning newspaper Alithia and its editor- in-chief, Alecos Costantinides.
The case concerned the applicants' complaint about the outcome of defamation proceedings brought against them following the publication in Alithia of a series of articles which alleged that a former Minister of Defence, Mr Aloneftis, was corrupt. They relied on Art.l0. The Court noted that the Cypriot courts had made a carefully balanced examination of the case against the applicants and had concluded that the applicants had not sufficiently proven their primarily factual allegations. Indeed, the domestic courts had found that the applicants had acted maliciously and had blatantly disregarded the principles of responsible journalism. The Court found those findings persuasive in the circumstances and therefore held unanimously that there had been no violation of Art.l0.