England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MRS JUSTICE SWIFT DBE
[2009] EWHC 909 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/08/2010

Lord Justice Thomas:

Introduction

1. On 16 February 2007 the claimant (the Respondent to the appeal) issued proceedings against the Society of Jesus Trust of 1929 claiming damages for personal injury and consequential loss occasioned through sexual abuse by Father Michael Spencer SJ who taught him at Preston Catholic College, a secondary school between September 1969 (when he first attended the College at the age of 11) and June 1976.
2. The appellants, who were added as defendants in March 2008 (the Governors) and who are accepted to be the party vicariously responsible for Father Spencer, defended the claim on the basis that the claim had become time barred in June 1979 and that the abuse had not occurred. The claimant, in answer to the plea on limitation, contended that the proceedings were commenced in accordance with s. 11 and 14 of the Limitation Act within three years of the claimant's date of knowledge which was placed at 17 April 2005 or alternatively there ought to be an exclusion of the time limitation under s.33 of the Limitation Act.
3. An order was made by the Master that the issues of limitation and liability be tried together, with causation and damages being tried separately. The trial on limitation and liability took place in March 2009 before Swift J, during which she heard evidence from the claimant, 11 of the claimant's contemporaries at the College and three who had taught at the College who were called on behalf of the Governors. She heard evidence about what happened on 17 April 2005, the date which it was contended that the claimant had the relevant knowledge. In a judgment given on 5 May 2009, Swift J first made findings that the abuse had taken place, accepting to a large extent the claimant's evidence (see paragraphs 10-74). Next she held, applying the requisite test for knowledge for the purposes of s.14 of the Act, that the claimant must be taken to have known the nature and extent of those acts from the time the acts of sexual abuse were committed; that therefore the claim became time barred in June 1979 (see paragraphs 84-110). Third she held that she was satisfied that it would be equitable to allow the action to proceed, exercising the powers under s.33 of the Act; to the extent that there was any prejudice in relation to the issue of causation, it was likely to operate to the detriment of the claimant, since he had the burden of proving his loss (see paragraphs 111-130).
4. An order was made staying the claim against the Society of Jesus Trust and entering judgment against the College for damages to be determined. In January 2010, the claimant served a schedule of damages in which a claim for damages of £4.3m was advanced. This claim included past loss of earnings of £1.78m, interest of £0.66m and future loss of earnings of £1.95m.
5. The Governors appeal on two grounds:

i) The judge should not have decided that the abuse had occurred before deciding whether to exercise the power under s.33 of the Act to extend the time limit. What the judge had done was to "put the cart before the horse", an approach not permitted on the authorities and which had vitiated the exercise of the discretion under s.33.

ii) The judge had applied the wrong principle in determining whether the Governors had suffered prejudice in relation to the issue of causation.

The Governors sought a retrial of the issues on limitation, liability and causation before a different judge.

1. The exercise of discretion under s.33

(a) The authorities

6. The argument advanced by the Governors was founded upon a statement of principle made by Auld LJ in KR v Bryn Alyn Community Ltd [2003] EWCA Civ 85, [2003] QB 1441 that a judge must decide the issue under s.33 before determining liability, as to do otherwise would be "to put the cart before the horse". It was contended that this remained an applicable principle which the judge had breached by determining the issue under s.33 after she had determined liability by finding that Father Spencer had sexually abused the claimant.
7. In Bryn Alyn the observations of the court in relation to s.33 must be read in the light of the then position in law that intentional abuse alleged by the children was governed by a non-extendable six year limitation period, unless there was some provable instance of systemic negligence on behalf of the owners of the school. At paragraph 74 Auld LJ set out a summary of "well-established and/or uncontroversial starting points for the exercise of the discretion" under s.33. The seventh point he set out was the following:

"Where a judge determines the s. 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay."

8. In A v Hoare [2008] UKHL 6, [2008] 1 AC 844, the House of Lords over-ruled its own previous decision and held that the time limit for bringing a claim for intentional injuries could be extended under s.33. In giving the leading judgment Lord Hoffmann held that the question as to the effect on an actual claimant of his psychological state in consequence of the injury could be taken into account under s.33(3)(a); under that section the judge could look at the matter broadly and did not have to decide the highly artificial question under s.14. In considering the effect of the decision of the House on the exercise of the discretion under s.33 and the approach in Bryn Alyn, he emphasised at paragraph 49 that the discretion was unfettered: Horton v Sadler [2007] 1 AC 307. At the end of that paragraph, he concluded:

"The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered."

9. Lord Brown (with whom Lord Hoffmann agreed) also made some observations as to the exercise of the discretion (see paragraphs 84-89), including at paragraph 85 the following:

"First, in so far as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at paragraph 52, that is likely to bear significantly upon the possibility of having a fair trial."

10. On 29 July 2009, after Swift J had given her decision in the present case, Lord Clarke of Stone-cum-Ebony, MR, giving the judgment of the court in AB & Others v Nugent Care Society [2009] EWCA 827 considered the effect of the decision in A v Hoare on the approach to the exercise of the discretion under s.33, again emphasising that the discretion was wide and unfettered. The court re-considered the "well established and uncontroversial starting points" set out by Auld LJ in Bryn Alyn, stating:

"21. As to vi), we think that there are now likely to be many cases in which a judge will consider that it is not feasible to decide the issues simply by reference to the pleadings, written witness statements and the extent and content of discovery. He or she may well conclude that it is desirable that such oral evidence as is available should be heard because the strength of the claimant's evidence seems to us to be relevant to the way in which the discretion should be exercised. We entirely agree with the point made at vii) that, where a judge determines the s. 33 application along with the substantive issues in the case he or she should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. To do otherwise would, as the court said, be to put the cart before the horse.

22. That is however simply to emphasise the order in which the judge should determine the issues. When he or she is considering the cogency of the claimant's case, the oral evidence may be extremely valuable because it may throw light both on the prejudice suffered by the defendant and on the extent to which the claimant was reasonably inhibited in commencing proceedings. Thus, if the claimant's case is beset by inconsistencies and the claimant shows himself in evidence to be unreliable, the court may conclude that the delay is likely to prejudice the defendant in the way contemplated in Eli Lilly, namely by being put to the trouble and expense of successfully defending proceedings and then not being able to recover costs against impecunious claimants. In those circumstances, viewing the matter more broadly, as A v Hoare enjoins the courts to do, it may well be that it would not be equitable to allow the claimant to proceed. On the other hand, if the evidence of the claimant is compelling and cogent that the abuse occurred, and it is said that it was the abuse that inhibited him from commencing proceedings, that is surely a compelling point in favour of the claimant."

(b) The contention of the Governors

11. It was on the basis of these authorities that it was contended on behalf of the Governors that, as the judge had in her judgment made the findings that the abuse had occurred before making her decision on the exercise of the discretion under s.33, she had exercised her discretion on an impermissible approach in that she should have decided the s.33 issue first. By putting "the cart before the horse", she had vitiated the exercise of her discretion. It was accepted in the light of the authorities which I have set out that the judge was entitled to come to a provisional view for the purposes of s.33 in relation to the strength of the claimant's case in the light of the evidence given; it was also accepted that the judge was entitled, subject to the assumption provided for in s.14(2), to assess the credibility of the claimant's evidence in relation to the reasons for not bringing proceedings earlier. However, the judge should have taken into account the likely prejudice to the Governors in defending the proceedings and the other factors relevant to the s.33 discretion and reached a conclusion on s.33 before making a finding on whether the abuse had occurred. If a court decided first that the abuse was established and only then turned to the exercise of the discretion, it would be difficult to see as a matter of principle how, if the facts of abuse were established, it could be said there was any prejudice to a defendant because, ex hypothesi, there would have been no defence to the claim.
12. If the judge had approached the matter in the way she should have done, then she would have had to have approached the issue of prejudice to the Governors in a different way and would have reached a different result.

(iii) The task of an appellate court

13. In approaching this contention, it is easy to confuse form over substance. As all the cases make clear, the judge's discretion is unfettered. What an appellate court is concerned to see is whether the judge has approached the exercise of discretion in accordance with principle and come to a decision within the ambit of the discretion open to the decision maker. It is not, in my judgement, appropriate for an appellate court to ascribe a format for the delivery of a judgment or to decide the issue on the form of the judgment and the order in which the issues are set out.
14. The judge was quite properly asked to decide the issues of limitation and liability together, as the issue of limitation could not be decided without hearing evidence. The task facing the judge was one which presented the judge with the necessity of asking the right logical questions; whilst an appellate court must be sure that the correct questions were asked and properly addressed, it should not, in my view, prescribe the format in which the decisions on those questions must be recorded or the order in which they must be recorded.

(iv) The order of the judgment

15. I have already indicated in summary the way in which the judge ordered her judgment. The first part of her judgment which dealt with the issue of liability can be summarised as covering the following matters in the following order:

i) The claimant's education until he was 11;

ii) The claimant's evidence as to what had happened between him and Father Spencer SJ;

iii) An account of the 11 other witnesses, contemporaries of the claimant at the College;

iv) The evidence called from a lay teacher, the headmaster at the relevant period and Father Edwards SJ. The last witness was important as it had been alleged by the claimant that Father Edwards had walked into the room when Father Spencer was rubbing 'Deep Heat' into the claimant's naked groin during the period of abuse between 1969 and 1975; he had not been asked about the events until 2007 and only his witness statement was adduced at trial, as he was too ill to attend the trial or give a further statement;

v) The claimant's time at University, his career as a solicitor, his contact with Father Spencer in later life and the claimant's current position;

vi) The events of 17 April 2005 which gave rise to the claim that the claimant only had the relevant knowledge then;

vii) Events after 17 April 2005;

viii) The parties' contentions about the abuse;

ix) The findings as to the happening, nature and extent of the abuse;

x) The alleged effects of the abuse and the decision that it was inappropriate to determine the issue of causation.

16. Only after all those matters which she dealt with in the first 83 paragraphs of her judgment, did the judge turn at paragraph 84 to the issues on limitation. She then dealt first with the question of s.11 and s.14 of the Act and made the findings to which I have briefly referred that his knowledge for the purposes of s.14 dated from the time the abuse had occurred. It was only then at paragraph 111 of her judgment that she turned to the question under s.33.

(v) Conclusion

17. Although, as is apparent from the description of the order of the judgment, findings that the abuse had occurred were made prior to the discussion of and decision on the limitation issue under s.33, what matters, in my view, is an analysis of the way in which she approached the exercise of the discretion under s.33. In the part of her judgment in which she considered the issue under s.33 the judge first set out the respective contentions of the claimant and the Governors. It is clear from the recitation of those submissions that the matters to which the judge was directing her attention at this stage of the judgment were not the findings which she had made about the happening of the abuse, but to the cogency of the evidence, the claimant's submission that the evidence was overwhelming and the Governors' submission as to prejudice and in particular the impossibility of the court ascertaining the effects of the abuse.
18. The judge then carried out a careful analysis of the cogency of the evidence. At paragraph 123 she set out the key features of the evidence upon which the claimant relied and in particular that this was a case where the allegations did not bear the hallmarks of exaggeration and where the claimant had not jumped on a bandwagon of other similar complaints; that there was evidence to support the allegations from a number of contemporaries, one of whom had seen Father Spencer filming the claimant; that despite the delay six witnesses had come forward spontaneously shortly before the trial started. She concluded:

"In the face of evidence such as this, the defendants were always going to experience great difficulties in persuading a court that the claimant's allegations were untrue or exaggerated."

She then carefully analysed the prejudice, particularly that caused by the death of Father Spencer and the difficulty in finding other members of the staff at the College. She concluded:

"I regard it as highly unlikely that the availability of other members of the staff of the school would have improved the school's prospect of succeeding on the issue of liability."

She then considered the effect of delay on the cogency of the evidence relating to the psychiatric effect of the abuse on the claimant. I will return to that at paragraphs 23 and following below. She concluded at paragraph 129:

"To the extent that there is any prejudice in relation to the issue of causation, it is likely to operate to the detriment of the claimant since he will bear the burden of proving his loss."

19. In my view, this part of her judgment was an analysis of the factors relevant to s.33, namely an assessment of the reasons for the delay, the cogency of the claimant's case against the prejudice likely to be caused to the Governors and other relevant considerations. She did not adopt the approach which is the foundation of the contention of the Governors that she was satisfied that Father Spencer had in fact sexually abused the claimant and therefore there could be no prejudice. In accordance with the decision in A v Hoare the judge took into account her findings that knowledge dated from the time that the abuse was alleged and the reasons for the delay in bringing the claim, but her analysis was throughout based not on a finding that the abuse had occurred but on the cogency of the evidence of that abuse and the prejudice to the Governors.
20. When this court observed that the judge must decide the issue on the exercise of the discretion under s.33 before reaching the conclusions on liability, it was enjoining a judge to decide the s.33 question on the basis, not of the finding that abuse had occurred, but on an overall assessment, including the cogency of the evidence and the potential effect of the delay on it. It was not seeking to prescribe a formulaic template for the construction of a judgment; it was leaving the judge to decide the best way to write the judgment which would expound the analysis that the law required.
21. In the circumstances of this case, it is clear from an analysis of the judgment that the judge approached the issue under s.33 entirely in accordance with principle. She reached a decision that was plainly open to her in the circumstances of the case; the evidence against Father Spencer was strong, particularly in the light of the evidence of the claimant's contemporaries at the College; it is important to note the observation of the judge at paragraph 66:

"Despite these criticisms of the claimant's evidence, [the Governors] did not seriously dispute the fact that Father Spencer had been guilty of some abuse, in the form of filming the claimant naked and fondling him sexually. However, they did not accept that the abuse was as long-lasting or as severe as the claimant had described."

In contrast there were ample grounds for concluding that the prejudice to the Governors, particularly the death of Father Spencer, the inability of Father Edwards to give evidence and the general effects of delay, had not materially affected the ability of the Governors to defend the action.

22. There is, in short, no basis for concluding that the order in which the judge approached the issues in any way affected the substance of the way in which the discretion under s.33 was exercised or the decision reached.

2. The judge's failure to approach the exercise of the discretion in relation to causation in accordance with principle

23. The judge's finding in relation to the psychiatric effects of abuse on the claimant were set out at paragraph 125:

"It is necessary to consider also the effect of delay on the cogency of the evidence relating to the psychiatric effects of the abuse on the claimant. There is no doubt that the task of unravelling, more than 35 years after the abuse ended, what, if any, impact it has had on the claimant would be a difficult one. Having said that, there is some force in the contention made by the claimant that there would have been difficulty also (perhaps even greater difficulty) in predicting when the claimant was 21 or 22 what the effects of the abuse would be on his future life and career. The burden of proving that the abuse has had the various effects which the claimant contends on his academic achievements, personality and psychiatric health, as well as upon such matters as his ability to form relationships and to achieve his employment potential, would of course lie on the claimant himself. The exercise of determining causation would require a detailed scrutiny of the claimant's past academic, employment and personal history, together with an examination of the available lay and medical evidence. It would also involve an assessment of the claimant's reliability as a witness. These are exercises which the courts are well used to carrying out. Given the delay in this case, they would require particular care."

She then reached her conclusion in paragraph 129 which I have set out at paragraph 18 above.

24. The argument advanced on behalf of the Governors was simply, but cogently, put. It was well recognised that delay would have a very significant effect on determining the effect of the abuse on a claimant: see for example, paragraphs 81 of the judgment of Auld LJ in Bryn Alyn. As it was always a claimant's burden to establish the extent of his loss, it could not be right in principle to say that there was no prejudice to a defendant simply because the burden fell on the claimant.
25. Expressed in that simple, but elegant, way, the Governors' argument would in general be correct. However, on the facts of this case it is clear that what the judge had in mind was the following. There would undoubtedly be some small award for general damages on the basis of her finding of sexual assault. However, as the claimant was seeking very significant damages on the basis that the abuse had affected the whole of his career both at university and subsequently as a solicitor, proving that effect would be very difficult for the claimant in all the circumstances of the case. It would be for him, on the facts of this case, to demonstrate in the light of the events that had occurred that the sexual abuse was responsible for the large claim which, though not quantified before the judge, is now quantified, as I have set out, in excess of £4 million.
26. In my view, therefore, the judge was correct in her approach to this issue on the facts of this particular case. There is no basis, therefore, for interfering with the exercise of her discretion on this second ground.

Conclusion

27. I would therefore dismiss the appeal.

Lord Justice Toulson:

28. I agree.

Lord Justice Mummery:

29. I also agree.