The natural topic for this blog, as has been seen, is legal theory and news. That was the first topic. To that topic I thus return. You may well have seen this week the news relating to the judgment in the 'Lotto Rapist' case. Insofar as I can, I hope to suggest the correct importance is other than that shown in the media. Plus ça change...
Legal Procedure and Limitations
The legal system has huge weaknesses. What is does, by its very nature, is it 'pigeon-holes' cases. No-one can create a rule-book that deals with every possible scenario. It's simply not humanly possible. So we generalise instead. Like scientists, we say 'the new situation is like that other one we met yesterday', and so we treat it in the same way.
How is this at all relevant to rapists and the lottery, you may ask? Well, the case has absolutely nothing to do with the lottery (in theory) and has only little to do with sexual assault.
What the case is about is set rules of legal procedure. If you injure me, I may claim compensation. I have a right against you. But this right of action (the right to claim) is limited. What that means is that, after a certain period of time, I am barred from bringing a claim. The periods of time are different for different types of cases. They are set down in the Limitation Act 1980.
The case actually hung on a nice question of legal definition. The question really was 'is claiming compensation from a sexual assault' an action in tort or an action for damages for 'negligence, nuisance, or breach of duty'? Why, I'm sure you're asking, is there a difference? The distinction is found in the Limitation Act itself. Under section 2, actions in tort are barred after 6 years from the cause of the damage. (A tort, from the French, is a wrongful act or omission, most often from negligence, which causes damage to person or personal property. Libel is a famous example.) But 'damages for negligence, nuisance, or breach of duty' (technically a subset of torts) are treated differently under sections 11-14. The limitation here is 3 years. But it can be extended indefinitely by the courts under section 33 'if it appears equitable to do so'.
That was the complicated bit. As you may have guessed, therefore, the cases are barred under the statute if they come under section 2. There is no curial discretion if that is the case. But if under section 11, then the courts could waive the rule in the interests of justice.
In the case of Stubbings v Webb (1993) the House of Lords unanimously decided that section 11 does not apply to a case of deliberate assault, including acts of sexual assault. It was held, instead, to come under section 2. The decision was strongly criticised in academic circles, but was nonetheless binding on lower courts.
We therefore come to the present case. Mrs. A, as she is known, sued for damages when her assaulter, Hoare, won £7 million in the lottery. Why did she not sue before? Well, as Lord Hoffmann notes in his judgment, 'people who commit sexual assaults are seldom worth suing.' Suddenly, long after every limitation has passed, the action becomes worthwhile. It thus seems 'equitable' to waive the limitation, as the courts are entitled to do for section 11 claims. But whilst the decision in Stubbings remains good law.
The House of Lords, uniquely amongst English courts, may overrule its previous decisions. The Court of Appeal is bound by itself entirely: only the House of Lords may change a Court of appeal decision. But the Lords, being the last resort, can overrule themselves. I've copied out the landmark statement that created this doctrine in 1966. It is very important and central to the legal issue in this case:
'STATEMENTS TO THE HOUSE
26 July 1966—BY THE LORD CHANCELLOR (LORD GARDINER)
‘Before judgments are delivered today, I wish to make the following statement on behalf of
myself and the Lords of Appeal in Ordinary:
“Their Lordships regard the use of precedent as an indispensable foundation upon which to
decide what is the law and its application to individual cases. It provides at least some degree of
certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for
orderly development of legal rules.
“Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper development of the law. They
propose therefore to modify their present practice and, while treating former decisions of this
House as normally binding, to depart from a previous decision when it appears right to do so.
“In this connection they will bear in mind the danger of disturbing retrospectively the basis
on which contracts, settlements of property and fiscal arrangements have been entered into and
also the especial need for certainty as to the criminal law.
“This announcement is not intended to affect the use of precedent elsewhere than in this
What Mrs. A and her fellow-claimants asked for was that Stubbings be overruled. They succeeded. Their Lordships overruled their previous anomolous and much-criticised decision.
What the media have said is often badly exaggerated. Even the BBC are guilty of this. The judgment does not 'overrule four hundred years of legal precedent'. It removes a small anomoly in the interpretation of the terms of a 1980 Act of Parliament. It overrules 15 years' precedent. In some cases, the judges awarded compensation based on earlier judges' decisions. In others, they simply decided that it might be possible to award compensation. They overruled Stubbings and said, in effect 'decide this again, because you're no longer bound by this mistake'.
So what of the consequences? Well, it's no longer impossible to bring cases for assault and sexual assault damages after the 6 year limit. But, importantly, there is now actually a three year limit, unless the courts see fit to extend it (under section 11). This is substantially overlooked in the reports! This could, hoiwever, have significant implications for councils, churches, and other organisations in which historical abuse is alleged.
So it's a big case. But not quite so big as it was painted. And actually very much more complex.