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
LINCOLN DISTRICT REGISTRY
(HIS HONOUR JUDGE OWEN QC sitting as a High Court Judge)

		Royal Courts of Justice Strand London, WC2A 2LL
		25 November 2015

Lord Justice Floyd:

1. This is a renewed application for permission to appeal the decision of HHJ Owen QC sitting as a High Court judge dated 4 June 2014.
2. The matter came before the judge on a summary judgment application by the defendant local authority, North East Lincolnshire Council. The judge granted the summary judgment and the claimants, Colleen Hyde and Liza Morley, wish to appeal against that judgment. The claim which they make in the action is for damages against the local authority for harm which they suffered in the form of assault, including indecent assault, which they say was caused by the negligence or the breach of statutory duty of the defendant local authority. In their Particulars of Claim it is said that Ms Hyde who was born on 25 July 1956 and Mrs Morley who was born in October 1963 (and who are therefore 59 and 52 respectively) were subject to serious and sustained sexual abuse by their father, Mr Roy Wilkes. Mr Wilkes is now dead. The abuse took place during the period approximately 1960 to 1978, that is to say, between 56 and 38 years ago.
3. On a summary judgment application it would not be possible to investigate the truth or otherwise of those allegations, and that was not the question which the judge had to decide. I have made it clear to Ms Hyde and Mrs Morley that, like the judge and like Elias LJ who refused permission to appeal on the papers, I have proceeded on the basis that the allegations of sexual abuse which they make were true. The question, however, which the judge had to decide was not that; it was whether at any point the standard of care which the local authority exercised fell below that demanded in the tort of negligence or breached any relevant statutory duty. For that purpose it was obviously necessary for the judge to have expert evidence as to what a responsible body of professionals would have done and how they would have reacted to the allegations which the claimants were making. That was particularly important in this case because of the passage of time and the changes in the standards of care and the abilities of local authorities to recognise signs of sexual abuse which had occurred in the intervening decades.
4. The documents in this case which still existed were analysed by two experts in social care, a Ms Maria Ruegger on behalf of the claimant and a Mr Steven Peizzey on behalf of the defendant. Ms Ruegger made an initial report of 17 July 2010. She pointed out that social workers at the time were not trained to recognise the signs of sexual abuse. However, in respect of one incident when Ms Hyde made a direct complaint of sexual assault by Mr Wilkes in 1968, she pointed out that despite the different state of knowledge at the time it would have been appropriate for the social worker to report the matter to the police rather than dismiss the allegation (as she did) as a lie. Had Mr Wilkes been arrested and convicted on that charge it would have had the effect of preventing later abuse against Mrs Morley. There were passages in Ms Ruegger's first report which were critical of the defendant's social worker's approach. A second disclosure in 1971 was reported to police albeit after a delay but the decision was taken by the police not to prosecute Mr Wilkes because of lack of evidence.
5. Ms Ruegger's views did not however coincide with those of Mr Peizzey. His view about the incident in 1968 was that, taking account of the factors then known to the social worker concerned, the social worker could not fairly be criticised for the action or lack of it which was taken. The records showed that the first claimant had a record (for whatever reason) of being untruthful and of manipulating people. Moreover, in an interview shortly after with two female police officers the claimant did not repeat the allegation which she had made to the social worker. Today this behaviour would have been taken as typical of a victim of sexual abuse, but at the time the state of the science was such that it would not have triggered any alarms.
6. The experts, having expressed these views, then met. At the meeting it emerged that Ms Ruegger's first report had proceeded without reference to the full medical and documentary history. This led to a second joint report following a discussion between the experts and to a reconsideration by Ms Ruegger of the views expressed in her first report.
7. It is important to point out again, as it may be of some comfort to these claimants, that both experts proceeded on the basis that the allegations were true. There is therefore no implication in the reports or indeed in the judge's judgment that the appalling events which they described did not happen. However, when the experts came to express their final views on the standard of care which the North East Lincolnshire Council offered and their reaction to the disclosures made by the claimants, their views were unanimous. The judge described the difficulty for the claimants in those circumstances in the following way:

"The difficulty for the claimants is that there is not, in my judgment, on the available evidence, which appears to be complete (or as complete as it could be by the time of any trial) any realistic prospect of establishing the fact of a breach of duty by the social worker in respect of either disclosure or any inaction following Wilkes' crude and cruel letters. The claimants also bear the burden of showing that any such breach was causative of an injury. At this stage the burden is upon the defendant to show the absence of any realistic prospect of establishing causation.

The difficulty for the claimants is that on the evidence which is available, so far as the 1971 disclosure is concerned, there simply is no evidence which could be said to have any realistic prospect of success in showing that there was a breach of duty on the part of the social worker(s). The decision not to take the matter further in 1968 was clearly not unreasonable but there is no evidence upon which the claimants might realistically rely to show that it is arguable that the response be shown to have been unreasonable. The social workers proceeded to encourage rehabilitation of the relationship between stepfather and daughter supported by the mother. Whilst it is accepted that another social worker might have considered, notwithstanding the police approach, total separation from parents or, despite the mother's wishes and indeed daughter's wishes, exclusion of Wilkes at that stage it is not realistic to argue that the decision of the social worker was outwith the standard identified by the experts.

It may well be the case that in her evidence (I speculate) the first claimant might wish to explain why it is that she retracted her complaint and it may well be that the judge would have sympathy with the explanation to the effect that it was retracted for the sake of the mother or for other personal and private reasons not disclosed at the time. But the question at the trial will not concern the reasonableness of the first claimant's behaviour. The question is whether or not the response of the social workers was, arguably at least, below the agreed and relevant standard.

Mr Davy's [counsel for the claimants] submissions as to why the case has merit or should not be summarily dismissed at this stage could not have been better presented but, as submitted by Ms Brown [counsel for the local authority], it is clear the claim lacks that necessary element of reality. It would not be appropriate, in these circumstances, unless there was some other compelling reason, which there is not, to permit this claim to proceed to a trial."

8. This morning both the applicants have explained to me the terrible hurt which they feel and which they continue to feel because they were not listened to by the local authority. I wish I could turn the clock back for these claimants so that modern day standards of social care could be applied to them and to the disclosures which they made in 1968 and 1971, but I cannot do so. Against the background of the agreed expert evidence, it seems to me, as it seemed to the judge, that the applicants face insurmountable obstacles in establishing a breach of duty by the defendant in this case. It is true that Ms Ruegger was at one time prepared to support the claimants' case on liability but that was on the basis of an incomplete record. Now that the complete record has been examined and the experts are agreed, there is really no prospect of the matter being looked at differently at trial. As the judge said, the evidence is effectively complete so far as relevant matters are concerned.
9. While I recognise the deep sense of hurt which these two ladies feel about the events of the 1960s and 70s, that in itself would not be a justifiable basis for allowing this matter to go to trial, or giving permission for an appeal to the full court. In fact, to do so would simply exacerbate what no doubt continues to be a very deep pain. It would not be a kindness to allow the action to go to trial because it would be bound to fail.
10. For those reasons the appeal would not have a realistic prospect of success and there is no other compelling reason why this court should hear the appeal. With a heavy heart, I am bound to refuse permission to appeal.

Order: Application refused