An exercise in discretion: Robert Carroll v Chief Constable of Greater Manchester

Court of Appeal (Sir Terence Etherton MR, Hickinbottom LJ, Turner LJ)

1 December 2017

Executive summary

An undercover officer alleged that he was negligently exposed to drugs in 2009. He became a regular user leading to depressive disorder. He consulted his GP in 2009 but did not inform him of drug use. The GP made a diagnosis of depressive disorder in February 2012. Proceedings were issued in November 2013, outside the primary three year limitation period under section 33 of the Limitation Act 1980 (‘section 33’). The court exercised its discretion to extend the limitation period, firstly because it had been reasonable for the claimant to withhold from his GP the fact that he was a drugs’ user because this could have led to his dismissal and secondly as there was no compelling evidence that the delay had prejudiced the defendant.

Background and proceedings

The claimant was asked to perform the role and persona of a drug user/dealer as part of his duties as an undercover officer. At a training day in May 2009 he was asked to burn heroin and in that process inhaled some. He left the undercover unit in November 2009 but by then was a regular drug user. He saw his GP complaining of a depressive episode in 2009 but did not reveal the fact that he was a drugs’ user. The GP did not diagnose depressive disorder until February 2012. In July 2012 the claimant was suspended from duty and in November 2013 pleaded guilty to theft and misconduct in a public office to support his drugs’ use. He was sentenced to 14 months imprisonment and dismissed from the police service.

The claimant had instructed solicitors in his civil claim in November 2012 and they issued proceedings in November 2013, believing they were within the limitation period. The claimant made various allegations in negligence that he had not been provided with a safe system of work.

The defendant claimed that the matter was statute barred. This was heard as a preliminary issue, the judge ruling that the claimant did not have the relevant knowledge to seek professional advice about the link between his condition and employment until the GP’s diagnosis of depressive disorder in February 2012. He had therefore issued proceedings within the limitation period.

The judge did not as a result have to rule on the issue of extending the time limit under section 33 but observed that the claimant was not unreasonable in failing to inform his GP about his drugs’ use given the likely catastrophic loss of his employment. Even on the defendant’s case that time started to run in 2009, the claimant had only delayed by 12 months, and although there was some potential prejudice through loss of documents, it was not so prejudicial that it would be inequitable to allow the claimant to proceed.

The defendant appealed and the claimant conceded that by 25 September 2009 he knew that his addiction was capable of being attributed to his employment. The only issue was the exercise of discretion under section 33.

Decision

The Court of Appeal set out the general principles for the exercise of the discretion, including the balance of prejudice and the burden falling on the claimant to show that his prejudice would outweigh the defendant’s. A defendant only deserved to escape accountability for civil wrongs if the passage of time had significantly diminished its opportunity to defend a claim. The reason for delay was relevant. Proportionality was also an issue, and the weakness of a claim or its modest value were reasons to be taken into account in applying the discretion.

The court did not accept the defendant’s argument that he was prejudiced by the delay through the loss of documents. There was no evidence that documents had become unavailable before or after the limitation period expired. Some daybooks had been destroyed contrary to force policy and it was not clear whether some documents had ever existed. No evidence was provided as to any attempts to speak to former officers or of present practice at similar training sessions.

The Court of Appeal rejected the defendant’s proposition that no judge could properly conclude that it was reasonable for the claimant not to be fully frank when seeking medical advice. It was not unreasonable for the claimant to deal with the issue without exposing himself to the risk of dismissal.

It was also relevant that he had instructed solicitors only four months after the expiry of the limitation period and it was his solicitors who then delayed a year in the belief that they were within the limitation period. Proportionality was not an issue because it could not be said that the case was so inherently weak that it should be struck out.

The appeal was therefore dismissed and the discretion exercised under section 33 was upheld.

Comment

The case provides useful clarification of the application of section 33. The defendant was unable to convince the court that prejudice was caused by loss of documents: compelling evidence is required to do so.

The case is also noteworthy for supporting the claimant’s earlier decision not to disclose his drugs’ use to his GP. This suggests a heavy burden on a defendant to show unreasonable delay and so tip the balance exercise in a defendant’s favour.

For further information about this update, please contact Clêr Drape, Solicitor on 0151 242 7915 or by email at cler.drape@weightmans.com