A v Hoare [2008] EWHC 1573 (QB) (08 July 2008)

In 1988 the defendant attempted to rape the claimant and received a life sentence. After his 2004 release he won £7 million on the National Lottery, prompting the claimant to sue for psychiatric injury. Despite a 16‑year delay, the court exercised its section 33 discretion to disapply limitation and allow her personal injury claim to proceed.

Facts

On 22 February 1988 the defendant subjected the claimant to a serious sexual assault in Roundhay Park, Leeds. He pleaded not guilty, the claimant gave evidence at his criminal trial, and he was convicted of attempted rape. He had six previous convictions for rape, attempted rape and indecent assault and was sentenced to life imprisonment.

The claimant was advised to apply to the Criminal Injuries Compensation Board and received £5,000. No civil claim was contemplated at that time because the defendant was a life prisoner with no means to satisfy any judgment. The claimant understood he would never be released.

On 10 May 2004 the defendant was released on licence. On 4 August 2004, while on day release, he won £7 million on the National Lottery. Publicity about the win alerted the claimant both to his release and his new-found wealth. She suffered a significant recurrence of psychiatric symptoms and, on 22 December 2004, commenced civil proceedings for assault and battery resulting in psychiatric injury.

The claimant’s evidence, supported by a psychiatric report from Dr Adrianne Reveley, was that she suffered post-traumatic stress disorder (PTSD) following the attack. In her 1988 statement she described the attack as causing her, in her words,

“severe stress… I became a nervous wreck”

After years in which she had largely rebuilt her life by psychologically ‘blocking out’ the events, the defendant’s release and lottery win in 2004 triggered a complete return of symptoms. She said:

“The additional news of his lottery win left me in utter disbelief that he had been released from prison and had been able to buy a lottery ticket. He had in fact, it was said, been on parole for quite some time, and nobody had told me. The fact that I had identified him in a line up and that my evidence had resulted in him being in prison became extremely traumatic to me once again. I became a ‘nervous wreck’. I stayed in my house, shut the curtains and locked the door, terrified that he would either seek me out and attack me again or pay somebody to come and get me. I was immediately taken back to the mental state I was in after the attempted rape. All I wanted to do was stay inside the house. … the intrusive images of the attack, which I have managed to block out for so many years, returned and did so graphically.”

Dr Reveley described this as a second clinically significant episode of PTSD:

“Mrs A experienced a complete return of her PTSD symptoms in 2004 after hearing that the man who had attacked her had been released from prison. Because he had won a considerable sum playing the lottery, his picture was in the newspapers, and this widespread publicity caused Mrs A great distress. Mrs A says the symptoms were probably worse, in 2004, because she was afraid that the man might ‘seek retribution’ and attack her, or pay someone else to attack her. Mrs A was again fearful, anxious and had intrusive images of what happened to her in 1989. She was unable to go out, and withdrew socially. Mrs A’s symptoms are outlined in the paragraphs above. In my opinion, Mrs A had a second period of PTSD at this time, which remains clinically significant, although improved. Mrs A continues to have intrusive imagery and worries about what happened.”

The claimant explained why she had not previously pursued a civil claim:

“He was entirely impecunious at the time he attacked me, and was remanded into custody following his arrest before receiving a life sentence for his attack on me at the end of the trial. Pursuing Mr Hoare for compensation at the time did not enter my head, as it would have been a wholly pointless exercise: he was penniless and in prison and in no position to pay compensation. As far as I was concerned he would never be released. He had spent all of his adult life attacking women and I believe when the judge described him as a danger to all women and imposed a life sentence that would mean exactly that….. My motivation for pursuing this claim for civil damages against Mr Hoare is not primarily rooted in wanting to secure a share of his fortune. I very strongly believe he should be held personally accountable to me for his attack on me and the physiological damage the attack has caused me over the years. The attack fundamentally changed me and I am not the person I used to be. I also believe he should be made to personally repay the public purse for the criminal compensation that I received after the attack.”

Issues

Initially, binding House of Lords authority held that intentional assaults were governed by section 2 of the Limitation Act 1980, with a non-extendable six-year period. The claimant contended that her claim fell under section 11, which provides a three-year limitation period subject to extension by knowledge (section 14) and the court’s discretion (section 33).

The House of Lords, in an earlier stage of these proceedings, accepted that section 11 applied to trespass to the person, including sexual assault, and held that Stubbings v Webb had been wrongly decided. Their Lordships ordered that the case:

“…. be remitted to a judge of the Queen’s Bench Division of Her Majesty’s High Court of Justice to decide whether the discretion under section 33 of the Limitation Act 1980 should be exercised in the appellant’s favour…”

On remission to Coulson J, the central issue was whether it was equitable, under section 33, to disapply the primary three-year limitation period in favour of the claimant, notwithstanding a delay of some 16 years and 10 months from the assault and nearly 14 years beyond the expiry of the primary limitation period.

Key sub-issues included:

• The length and reasons for the delay in issuing proceedings.
• The effect of delay on the cogency of the evidence and the defendant’s ability to defend the claim, especially on causation and quantum.
• The relevance of the defendant’s previous impecuniosity and his subsequent lottery win.
• The significance of the claimant’s prior recourse to criminal injuries compensation.
• Whether any conduct of the defendant or any disability of the claimant affected the analysis.

Judgment

Applicable legal principles

Coulson J set out section 33 of the Limitation Act 1980. The section allows the court, where it is equitable, to direct that the primary limitation provisions shall not apply, having regard to all the circumstances and in particular the factors listed in section 33(3), including the length and reasons for delay, the effect of delay on the cogency of evidence, conduct of the defendant, any disability of the claimant, promptness once the claimant knew a claim might be brought, and steps to obtain expert advice.

He summarised case law emphasising:

• The importance of limitation rules as a matter of policy.
• The wide and unfettered nature of the section 33 discretion, subject to acting judicially.
• The heavy burden on the claimant to show it is equitable to disapply limitation.
• The need for a balancing exercise considering all relevant circumstances, rather than relying on a single factor.
• The requirement to examine both the length of and reasons for delay, and any prejudice to cogency of evidence.

He noted there was no prior authority directly addressing the situation where a claimant delayed because the defendant was previously unable to satisfy a judgment. He referred to the House of Lords’ obiter observations in this very case, including Lord Brown of Eaton-under-Heywood’s comments on the impracticality of suing indigent defendants in anticipation of possible future enforcement and Baroness Hale’s emphasis on weighing the injustice to both parties within the section 33 discretion.

Nature of the tort and its consequences

Coulson J regarded the starting point as the serious nature of the underlying intentional tort and the absence of any real dispute about liability. The violent sexual assault had resulted in a life sentence. Because of the criminal conviction, the defendant could not realistically contest liability in the civil action, though causation and quantum remained live issues. Delay therefore had no impact on the core liability question.

He highlighted that the commission of the tort and the resulting life sentence generated the very impecuniosity that, on the claimant’s evidence, had deterred her from suing earlier. If that impecuniosity, itself a consequence of the tort, barred her from civil recovery, the result would resemble the injustice identified by Baroness Hale where a claimant is deprived of a claim as a result of the very injuries which gave rise to it. He considered that inequitable.

The case was characterised as exceptional: a grave intentional assault leading to life imprisonment, followed by a wholly unexpected lottery win that transformed the defendant from a worthless judgment debtor into someone able to meet a substantial award.

Length and reasons for delay

The claim form was issued 16 years and 10 months after the assault and 13 years and 10 months after expiry of the three-year limitation period. The delay was acknowledged to be very long, increasing both the burden on the claimant and the risk of prejudice to the defendant.

On the evidence, Coulson J found as a fact that the principal reason for the delay was the defendant’s imprisonment and impecuniosity. The claimant believed he would never be released and would never have funds to satisfy a judgment, so she considered a civil claim pointless. He held this reason to be genuine and entirely understandable.

He also accepted a further, subconscious, reason: the claimant’s psychological need to ‘block out’ the events and rebuild her life. Commencing civil proceedings would have required her to revisit the trauma in court for a second time, which she was understandably reluctant to do.

He concluded that, in all the circumstances, the delay in bringing proceedings until after the defendant became wealthy was reasonable. He noted that any earlier civil action would likely have been futile, consuming the claimant’s and court’s resources for no practical benefit while the defendant remained unable to pay. He rejected the notion that the claimant ought to have litigated solely to obtain a judgment that might later be enforceable if the defendant’s fortunes changed.

Coulson J considered it unreasonable and inequitable to require a victim to bear the risk that a convicted, impecunious offender might one day become rich, merely to preserve a civil claim. He found it more sensible and fair for her to wait until the defendant actually had the means to pay.

He further regarded it as relevant that the defendant’s impecuniosity was itself a direct product of his wrongdoing: as a life prisoner he could not earn money to satisfy judgment. To allow him to rely on that position to defeat the claim, after later becoming wealthy, would be to let him benefit from his own wrong.

Effect of delay on cogency of evidence

Because of the criminal conviction, the underlying facts of the assault and liability were not in issue, and delay had no impact on that aspect of the case.

The defendant argued that delay prejudiced his ability to challenge causation, as the psychiatric report was based on the claimant’s retrospective account and he had been denied the opportunity of contemporaneous medical examination and evidence. Coulson J accepted there was some detriment: absence of contemporaneous psychiatric material from the immediate post-assault period could make causation arguments more difficult for the defendant.

However, he concluded that this prejudice was modest. Even if the claimant had seen the same psychiatrist shortly after the attack, the expert would always have been largely reliant on the claimant’s account of her symptoms. The delay mainly affected the reliability of her recollection of earlier feelings, not the fundamental nature of expert evidence.

Importantly, the second bout of PTSD in 2004 was recent and clinically significant. Evidence about that episode, including expert opinion, was not stale and could be investigated equally by both parties. The defendant had not sought to question or challenge Dr Reveley’s report, nor had he identified specific evidential gaps caused by delay. Complaints about the death of the claimant’s partner, who might have given corroborative evidence, were considered to prejudice the claimant more than the defendant.

Overall, while there was some general and specific prejudice to the defendant’s ability to defend on causation and quantum, it was limited, particularly given the fresh evidence surrounding the 2004 recurrence of PTSD.

Other statutory factors

There was no relevant post-tort conduct by the defendant affecting limitation issues, and no relevant disability of the claimant. These statutory factors were neutral.

As to acting promptly once a claim became realistically justifiable, the claimant learned of the defendant’s release and lottery win in August 2004, instructed solicitors later that month, and issued proceedings on 22 December 2004. A psychiatric report was commissioned in April 2005 and obtained in May 2005. Thereafter, delays were attributable to appellate proceedings on the preliminary limitation issue. Coulson J found that the claimant acted promptly and reasonably once the circumstances altered to make a civil action viable.

On the steps taken to obtain advice, he held that the claimant had acted reasonably in securing legal and medical advice once she knew that a meaningful claim against a solvent defendant might be possible.

Other relevant circumstances

The defendant relied on several additional points:

• Criminal injuries compensation: The claimant had previously received £5,000 from the Criminal Injuries Compensation Board. Coulson J accepted this was a relevant factor but of limited weight. It was not paid by the tortfeasor but by the taxpayer. Allowing the defendant to rely heavily on a payment he neither made nor offered to refund would be inconsistent with restorative justice. Nor was there evidence that the award matched the full civil value of the claim, particularly in light of authority on quantum for sexual assaults.
• Costs and conditional fee uplifts: The defendant argued he would now face greater costs, including any success fee under a conditional fee agreement, than if the action had been brought earlier. The judge treated this as a potential but minor element of prejudice carrying little weight in the overall balance.
• Publicity about an early offer: A reported offer in media coverage (Daily Mail Online) was said to prejudice the defendant. Coulson J rejected any suggestion that such publicity affected the fairness of future proceedings.
• Rehabilitation and desire for a “clean slate”: The defendant contended that, having served a lengthy term and become “rehabilitated”, he should be able to “put the past behind him” and not be “vexed” by litigation. Coulson J emphatically rejected this. As a life sentence prisoner on licence, the defendant’s liberty remained conditional and the seriousness of his offending meant he could never have a true “clean slate”. This desire not to face civil accountability was given no significant weight.

Human Rights Act arguments raised in a witness statement were not pursued in argument and were dismissed as inapplicable to the section 33 decision.

Balancing exercise and conclusion

Conducting the overall section 33 balancing exercise, Coulson J acknowledged several factors favouring the defendant: the very long delay, some difficulties for him in marshalling evidence on causation due to that delay, and the prior £5,000 paid under the criminal injuries scheme. Nonetheless, he found that factors favouring the claimant were more numerous and of substantially greater weight.

He emphasised in particular:

• The grave nature of the intentional sexual assault.
• The fact that the defendant’s own wrongdoing led to his long-term imprisonment and consequent impecuniosity, rendering earlier proceedings futile.
• The reasonableness and genuineness of the claimant’s decision not to sue an indigent life prisoner, particularly where her expectations (that he would not be released or become wealthy) were reasonable at the time.
• Her promptness in acting once the defendant’s financial circumstances changed dramatically.
• The availability of fresh, clinically significant psychiatric evidence relating to the 2004 recurrence of PTSD.

He concluded that equity required exercise of the section 33 discretion in the claimant’s favour, describing the case as wholly exceptional, given the combination of a life sentence for an intentional assault, consequent impecuniosity, and a later multi-million-pound lottery win.

Implications

This decision illustrates a flexible and fact-sensitive application of section 33 in historic personal injury claims arising from sexual assaults. It confirms that a claimant’s decision not to sue an indigent defendant can, in appropriate and exceptional circumstances, constitute a reasonable explanation for very long delay, particularly where that impecuniosity flows directly from the tort itself.

The judgment demonstrates that the seriousness of the underlying intentional tort and the link between the wrong and the defendant’s inability to satisfy judgment may weigh heavily in favour of disapplying limitation. At the same time, it reiterates that the impact of delay on evidential cogency, alternative sources of compensation, and general limitation policy remain important considerations.

More broadly, the case, following the House of Lords’ reclassification of sexual assault claims under section 11, underscores the central role of section 33 discretion in managing historic abuse claims, allowing courts to balance the injustice to victims of being time-barred against the injustice to defendants of defending very old claims. Coulson J stressed, however, that his conclusion was rooted in the particular, highly unusual facts and did not open a general route for claimants in ordinary cases to rely on a defendant’s impecuniosity to avoid limitation.

Verdict: The High Court exercised its discretion under section 33 of the Limitation Act 1980 to disapply the primary limitation period, holding that it was equitable to allow the claimant’s personal injury action for sexual assault to proceed notwithstanding the long delay.

Source: A v Hoare [2008] EWHC 1573 (QB) (08 July 2008)