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Capacity, Limitation and the Human Rights Act

Our People - GN
Rhea Taylor-Broughton
10 July, 2018

Under Section 7 of the Human Rights Act 1998 a person seeking a legal remedy for a breach of their human rights must bring proceedings within one year from the date that contravening act took place. The court has the discretion to extend this period for whatever period (it) “considers equitable having regard to all the circumstances”. The statute offers no explanation of what factors are required for it to be considered “equitable” to grant an extension and therefore it falls to judges to determine this matter on a case by case basis.

In the UK, human rights claims can be brought both in the civil courts and the Court of Protection.  In the latter, the person lacking capacity to conduct proceedings (P) is likely to experience a unique vulnerability due to their likely dependence on those around them. However, this factor alone “cannot automatically qualify as one to which decisive or even substantial weight must be given” when determining the equitability of extending the limitation period, according to King J in AP v Tameside Metropolitan Borough Council [2017] EWHC 65 (QB).

In this case, King J stated that weight should be given to the “dependency factor”, namely when P “first had someone acting on his behalf and looking after his human rights interests, and when that person came into… possession of knowledge of the essential facts” in light of “the expertise held by that person in identifying human rights claims”.

King J went on to state that ‘P’ “will undoubtedly suffer prejudice in not being able to purse his claim whatever view is taken of its underlying merits”, however, what is “more crucial is to consider the question of justice or fairness as between the parties” (para 92). The judge also went further when commenting on the merits of the claim, and commented that, “the matters relating to the obtaining of legal aid or the time taken to draft pleadings cannot in themselves make it equitable to extend time to the length required” to bring a human rights claim.

It was ultimately decided that it would not be equitable to allow an extension of the limitation period considering the “huge administrative burden on the Defendant”, the “substantial” costs to be incurred and the “considerable” extension of the normal twelve-month period that was being sought (some 4-6 years) particularly as P’s representatives had knowledge of the allegedly contravening act and legal representation well in advance of these proceedings.

The position differs when the contravening act is a continuing act, as set down in O’Connor (Appellant) v Bar Standards Board (Respondent) [2017] UKSC 78. Although this case did not involve the issue of capacity, the court gave weight to the outcome of the act in question and held that in cases where there is a “single continuing act of alleged incompatibility… the time will run from the date that the act ceased rather than began”.

Therefore, as P’s vulnerability is not automatically persuasive in determining whether human rights proceedings can commence out of time, when a query arises it is important to: –

  • act quickly in seeking legal advice;
  • obtain evidence of the breaching act to establish a clear timeline for the sake of limitation and, where possible; and
  • seek advice on any ongoing breach such as obtaining an order or injunction to prevent further infringement of P’s human rights.

Moreover, when human rights issues arise within Court of Protection proceedings – for example when it arises that P’s care plan amounted to a deprivation of liberty for which there was no authorisation under the Deprivation of Liberty Safeguards in the Mental Capacity Act 2005 – case law suggests that it is usually prudent to bring separate proceedings in the County or High Court due to the potential impact on public funding certificates and establishing the distinct merits of the claim.

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