Limitation and the Exercise of Discretion: A Lesson in Judicial Objectivity from the Troubles

In the recent Northern Irish case of Carberry (Deceased) v Ministry of Defence [2023] NIKB 54, McAlinden J delivered an impressive and lengthy judgment arising from the shooting of the Deceased on 13 November 1974.

The circumstances of the case stretch back to the period identified by the judge at [208] as ‘the darkest days of the Troubles’, and centre around the hijacking of a Vauxhall motor car by two men, one of whom was the deceased. At that time vehicles were hijacked so that they could be packed with explosives and detonated as roadside bombs.

An army patrol had been alerted to the hijacking and, as the Deceased and the other man attempted to escape, the patrol fired upon the occupants and the vehicle and the Deceased was killed.

The proceedings were issued on 16 May 2014, 13 years after the youngest of the Deceased’s children reached the age of 21. There was no issue in the case that the claims of the various family members had been brought out of time.

The question for the court was whether to exercise the discretion under Article 50 of the Limitation (Northern Ireland) Order 1989 (drafted in comparable terms to section 33 of the Limitation Act 1980) to disapply the limitation periods. The judgment is a model of judicial objectivity in the face of very difficult facts.

The judge reminded himself of the views of the court in, amongst others, Pearce v Secretary of State for the Home Departments [2018] EWHC 2009 (QB) (see [168]) and then said this at [169]:

… First of all, I will determine the issue of limitation which in this case involves considering whether it is appropriate to exercise the court’s discretion…and then, only if the article 50 issue is resolved in favour of the [claimant]…, will I go on to consider and adjudicate upon the substantive factual disputes in this case in order to determine whether the shooting of [the deceased] was justified in law.

In considering the exercise of the court’s discretion, at [170], McAlinden J recited the well-known summary of the law encapsulated at [42] of the judgment of Sir Terence Etherton MR, in the case of Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992; and then turned to consideration of ‘a couple of authorities which emphasise the detrimental impact that the passage of a prolonged period of time can and usually does have on the ability of a witness to provide cogent and reliable evidence to the court’ ([171]).

McAlinden J relied upon the judgment of Stewart J in the case of Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) who, in turn, set out pertinent extracts from the cases of Gestmin SGPS SA v Credit Suisse (UK) Limited; Lachaux v Lachaux; and Carmarthenshire County Council v Y.

Those extracts serve as a useful reminder that, amongst others:

• Oral evidence given under cross examination is the gold standard (Carmarthenshire);

• Memories are fluid and malleable…The process of civil litigation itself subjects the memories of witnesses to powerful biases (Gestmin); and

• Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active… (Lachaux)

Turning to matters of principle, McAlinden J went on:

[172] … It is a fundamental principle of civil justice that wrongs should be righted as soon as reasonably practicable and that disputes about the existence, nature, extent and breach of rights and/or duties should be initiated and brought before a competent, independent and impartial tribunal and finally determined either by that tribunal or through an appellate process within a reasonable timescale. The fair and timely final determination of civil disputes as one of the hallmarks of an effective civil justice system which is fit for purpose…

[176] Ensuring that the process is fair might, in some instances, be viewed as compromising the fairness of the outcome (the [Claimant] with an arguable case and with relevant, cogent and compelling evidence to back it up being deprived of the hearing on the merits) but fairness of process is such an important and fundamental concept underpinning any system of civil justice that any departure from fair process should not be seriously contemplated for the reasons that experience tells us that fairness of process generally gives rise to fairness of outcome and departure from fair process runs to high risk of the introduction of arbitrary decision-making into the civil justice system, thus bringing the justice system into disrepute.

Given the controversial nature of the facts in the case, and possibly marking a minor departure from the approach derived from Pearce, McAlinden J went on to say this:

[180] Finally, although the guidance contained in the caselaw steers the court towards addressing the issue of limitation and to reaching a decision on this issue before going on (in an appropriate case) to make a determination on the substance of the dispute between the parties; in order to properly come to determination of the limitation issue, it is usually appropriate and, in a good number of cases, it may be necessary, to hear all the available evidence prior to determining the limitation issue. By adopting such a course, the court gains a clear insight into the evidence that is now available, and the quality and cogency of that evidence and it also gains an appreciation of the nature and extent of the evidence which previously would have been available but is no longer available due to the passage of time. The evidence is carefully examined at that stage not for the purpose of making a determination on the substance of the dispute between the parties but rather it is examined in order to ascertain whether such a fair determination can be made on the basis of both parties being able to present relevant, cogent, and reliable evidence to the court.

Ultimately, the Judge declined to exercise the court’s discretion and concluded as follows:

[208] … the court is acutely aware that the [claimant] has belatedly embarked on a quest for the truth in relation to the shooting of his father on the Falls Road in November 1972. The court, in a misguided effort to provide Mr Carberry Junior and the other members of the Carberry family with the truth, cannot embark on a flawed and unfair process which risks delivering historical untruths, constructed from incomplete evidence which patently lacks cogency. In the circumstances of this case the court is of the view that it would be entirely wrong for it to exercise its discretion in favour of the [Claimant]…

Therefore, this case acts as a reminder of a number of features of what English lawyers know as section 33 applications, not least the need for scrupulous objectivity when considering the question of discretion, even in cases which involve controversial and unsettling facts.