Date: Tue, 8 Jul 2008 15:05

From: Tsachi Keren-Paz

Subject: Bye-bye limitation?

Dear Andrew and colleagues,

I strongly disagree. This case, for me, is not even a difficult one. The defendant's interest in closure is by far outweighed by the plaintiff's interest in being compensated for being sexually violated.

I find especially unfortunate your flippant approach towards the victim by saying "That's tough, but now get on with your life". I wonder if you would have found it as an acceptable answer if YOU were raped. I think this phrase reflects insensitivity which is at times typical of men of certain age and upbringing.

The question how far should we stretch this principle in balancing between the interests of victims of deliberate acts in compensation and of defendants in closure is indeed not easy to answer. I have no doubt that in this case, allowing the claim is just, and in general I would accord much less weight to the interest in closure when on the one hand, a serious transgression had occurred, and on the other hand, the defendant only later became worth suing.

Best wishes
Tsachi

Dr. Tsachi Keren-Paz
School of Law
Keele University
Staffordshire ST5 5BG
England
Office: CBC 2.015
Phone: 01782 584358
http://www.keele.ac.uk/depts/la/staff/tkerenpaz.htm
Book "Torts, Egalitarianism and Distributive Justice" https://www.ashgate.com/shopping/title.asp?key1=&key2=&orig=results&isbn=0%207546%204653%20X

----- Original Message -----
From: Andrew Tettenborn
Sent: Tuesday, July 08, 2008 12:22 PM
Subject: bye-bye limitation?

A v Hoare [2008] UKHL 6, [2008] 2 WLR 311 comes back to the English High Court today with a predictable but appalling decision by Coulson J: see [2008] EWHC 1573 (QB). Following the HL decision earlier this year that s.33 of the Limitation Act 1980 applied to deliberate torts such as sexual assault, the question was whether to disapply limitation under the section so as to allow this stale 20-year-old claim to be raked over the coals again -- and incidentally by someone who wasn't originally uncompensated, but in fact received a reasonable sum from the CICA.

Yes, says Coulson J. Why? Well, Hoare was very bad and therefore he doesn't deserve freedom from vexation; and the fact that he won the lottery makes it an exceptional case.

I find myself unattracted by either argument. I can't see why deliberate acts, even vile ones, should effectively negate the right of the defendant to put the past behind him and say to the claimant "That's tough, but now get on with your life" -- which is effectively the object (and a highly praiseworthy one) of limitation law. And while winning the lottery is exceptional, making the change from impecunious to relatively wealthy isn't. For all the protestations that the case is thoroughly unusual and doesn't open the floodgates, as I see it, it isn't and does. Essentially it's going to be very difficult in future for any defendant to resist the claimant saying "He didn't have any money then but he does now and therefore I'd like to sue him."

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