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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> AB & Ors v Nugent Care Society [2009] EWHC 481 (QB) (30 January 2009)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/481.html
Cite as: [2009] EWHC 481 (QB)
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QUEENS BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
1 Bridge Street West, Manchester. |
||
B e f o r e :
____________________
| IN THE MATTER OF: | ||
| AB AND OTHERS | ||
| -V- | ||
| THE NUGENT CARE SOCIETY |
____________________
MR. E. D. FAULKS Q.C. AND MR. N. FEWTRELL instructed by HILL DICKINSON LLP appeared on behalf of the Defendants
____________________
Crown Copyright ©
- In this judgment, I address four cases of alleged historic child abuse in St. Aidan's children's home, those four cases forming part of a much larger number of cases awaiting resolution. The question for me in each case is limitation. In one case only, that of DVB, there is an issue as to date of knowledge. In all four cases I must decide whether the limitation period should be extended by the exercise of my discretion, pursuant to the power given under the Limitation Act 1980, Section 33.
- As will appear in more detail below, two of these cases, that is to say JB and JPM, have already been the subject of hearings before Holland J. and then the Court of Appeal. Holland J. made findings in those two cases, and refused to exercise the discretion to extend the limitation periods. However, the Court of Appeal reviewed the cases in the light of the House of Lords decision in A -v- Hoare [2008] 1 AC 844 UKHL 6, a decision which was delivered by the House on 30 January 2008, too late to be cited to Holland J., whose judgments were given on 23 November 2006. Accordingly, when the Court of Appeal was asked to review these cases in July 2008, they took the view that the legal landscape had changed as a result of the Hoare decision and, despite the application of both parties that the court should itself review the exercise of discretion, ordered that the cases be remitted to Holland J. to review his decision on discretion in the light of his own findings of fact, but also in the light of the correction in the law represented by Hoare.
- In fact it proved inappropriate for these cases to return to Sir Christopher Holland, as he has now become. They are now before me and can be dealt with consistently with the others in the group. However, it is important to note that the findings of Holland J. were not disturbed by the Court of Appeal, and cannot and will not be disturbed by me, since such a step would, in effect, constitute an appeal.
- Those cases thus proceeded on the decided facts. Two other cases proceeded on the basis of evidence heard, or read by me, namely DVB and HC. As these initials indicate, these cases are to be anonymised in any reporting.
- I have described St. Aidan's as a childrens' home, but its history and status require a little fuller mention. The defendant in the case is the Nugent Care Society, a Roman Catholic organisation, formerly known as Catholic Social Services (Liverpool). At all relevant times they managed and were responsible for St. Aidan's in Norlands Road, Widnes, and another similar institution, St. Vincent's in Ravenmeol's Lane Formby, which is the home giving rise to many of the other actions to be considered. Both St. Aidan's and St. Vincent's date back at least into the middle 20th century, and I suspect much earlier. Both have held varied legal status over the relevant period, moving from being approved schools for the purposes of the Criminal Justice Act 1948, to become in around 1973 community homes, pursuant to the provisions of the Children and Young Persons Act 1969. However, their function has in practice remained very similar, receiving boys who had got into trouble with the law or had significant family problems, or both. A significant number of former staff members of both of these institutions have been convicted of physical or sexual abuse of the young people in their care. St. Aidan's closed in 1982, and St. Vincent's in 1989.
- Later in this judgment, I address the facts of these four cases, and my decisions on limitation. However, it is helpful to begin with a review of the law.
- Limitation has always been a vexed and difficult topic. Common sense dictates that parties who wish to initiate legal action, cannot always do so instantly, but that there must be a limit to the period when they can do so. If there were no period, or if the period is too long, then the potential defendant may think the problem has gone away and make financial or other plans accordingly, while yet the litigation might still come to threaten him. Evidence may often disappear, making a just outcome harder or impossible to achieve. Those generalities are easy to state and I have summarised them in the briefest fashion, but the law has often found difficulty in achieving the proper balance between those factors.
- Conceptually, the courts have sometimes addressed the time given for a complainant as always causing prejudice to a defendant, the stipulated limitation period representing the permitted period for the accumulation of prejudice before the shutters come down. For example, this is the analysis of Lord Oliver of Aylmerton in Donovan -v- Gwentoys [1990] 1 WLR 472, at page 479G to page 480B.
- The history of the law of limitation affecting intentional assaults has been particularly chequered, a history closely connected with the changing legislative background in and after the 1930s. In Stubbings -v- Webb [1993] AC 498, beginning at page 502, Lord Griffiths summarised the development of the law on limitation of liability since 1939. It is not necessary for me to repeat that, but at page 503 E to F, Lord Griffiths observed that the Limitation Act of 1954 introduced a three year limitation period for actions for negligence, nuisance or breach of duty, where the claim included a claim for damages for personal injury, with no discretion to extend that period. He then dealt with the case of Letang -v- Cooper, at page 503 G.
- In Cartledge -v- E. Jopling and Sons Limited [1963] AC 758, the House of Lords had confirmed that, even in the case of plaintiffs suffering occult injury from noxious dust, the limitation period ran from the point of injury, long before the plaintiff knew that he or she was injured. Parliament addressed that injustice in the Limitation Act 1963, which enabled the court to extend the three year period in such cases. However, that Act proved to be very badly drafted, with over complicated provisions. It was repealed and replaced by the Limitation Act 1975, the provisions of which were then incorporated within the Limitation Act 1980, the consolidated statute which remains in force today.
- The relevant provisions of the 1980 Act for these cases, are as follows:
- Returning to the speech of Lord Griffiths in Stubbings -v- Webb, he went on to say at page 505 H to 506 D,
- The other Law Lords agreed with Lord Griffiths, and so from 1990, the position was that an action for a deliberate assault carried a simple six year limitation period, commencing with the date of the assault, not any subsequent date of knowledge, and with no discretion for extension, pursuant to Section 33 of the Act.
- Two key changes in the law affecting this category of case happened in recent years. Firstly, in Lister and Others -v- Hesley Hall Limited [2002] 1 AC 215, the House of Lords overruled Trotman -v- North Yorkshire County Council [1999] LGR 584, and held that the employers of the warden of a boarding house of a school who abused pupils, could be held vicariously liable for his assaults upon the pupils. Secondly, in the Hoare case to which I have already referred, the House of Lords reversed Stubbings -v- Webb. I deal with those in turn.
- The effect of the Lister case needs littler fuller statement than to say that where there was a sufficient connection between the work of an employee and the acts of abuse committed by him, such as arise from employment in a residential institution where there is close contact between the employee and pupils or patients, with the 'inherent risks' involved in that situation, then vicarious liability may be established. In his speech, Lord Steyn reviewed an earlier authority, and identified that the supposed problem arising from vicarious liability for intentional unlawful acts of an employee, was one with which 'our law no longer struggles', see paragraph 20. He then went on to say -
- Mr. Faulks Q.C. Counsel for the Defendants before me, as indeed in many of these cases, observed correctly that this decision represented a clear legal policy. I agree. Their Lordships decided that the objection to vicarious liability for an employee's deliberate wrongdoing in this factual context previously supposed to exist, was an error of law, given that vicarious liability for deliberate wrongdoing by an employee had already been established in other factual contexts. However, it is also plain that all their Lordships considered the law should, as a matter of policy, provide for vicarious liability in such circumstances as apply in the cases before me. They must have been conscious that this would give rise to more cases being taken, but that did not deter them.
- It is also a necessary consequence of this decision that, as from May 2001 when these speeches were handed down, those who had responsibility for such institutions and their insurers, or those acting for alleged victims of abuse in institutions, must have known that the previous necessity to plead a failure of system of care in order to establish liability against an institution, as opposed to an unusually impecunious abuser, had disappeared, at least in cases where there was no limitation problem.
- The second change in the law was that brought about by the decision in Hoare. The House was concerned there with five conjoined appeals, of which the first concerned an attempted rapist who had won some £7m from the National Lottery, 15 years after his offences. His victim sued once he was worth suing, but the action was struck out by the Master on the ground that it was statute barred, since Stubbings -v- Webb had decided there was a six year limitation period, with no power to exercise discretion. The decision in Hoare itself was to overturn Stubbings -v- Webb.
- At the same time, the House heard a fifth conjoined appeal, Young -v- Catholic Care (Diocese of Leeds), which was concerned with the approach to the question of 'knowledge' as defined by Section 14 of the Limitation Act 1980, and with consequential changes to the approach of a Judge when exercising the Section 33 discretion. In the Young case, the claimant brought a claim in negligence, seeking damages for personal injury, in the form of psychiatric injury which it was alleged was the result of physical and sexual abuse suffered at the hands of the defendant's employees in the 1970's. The claimant framed his case on limitation on the basis that his knowledge that he had sustained a significant injury arose only when he 'reasonably' considered that the psychiatric consequences of the abuse had become significant. The House concluded that, in applying Section 14(2), the proper approach was not to ask whether a claimant's psychological state was such that he could not reasonably be expected to bring proceedings. The correct approach was to ask what the claimant knew about his injury, then to add any knowledge which was to be imputed to him under Section 14(3) of the Act, and then to ask whether a reasonable person with that body of knowledge, would have considered the injury sufficiently serious to justify instituting proceedings. Any question as to the effect of psychological factors applicable to the claimant or the claimant's knowledge of injury, or his ability to institute proceedings, was a matter rather for consideration under Section 33 of the Act. I will look at the speeches in Hoare more fully later in this judgment.
- It may be helped for other cases in the cohort to articulate as precisely as I can the conceptual basis of such actions, and to formulate in precise language the effect of Lister, Hoare and Young. An action against an abuser such as Hoare, is still an action in trespass to the person. However, where it is an action in relation to a breach of duty, and where it is an action in which the damages claimed by the claimant consist of or include damages in respect of personal injuries, as defined by Section 38(1), then it falls within the category defined in Section 11. The primary limitation period is three years from the date of knowledge, subject to extension by the Court under Section 33. Questions may arise where the claim does not include a claim for such damages, for example, a case of sex abuse which did not cause any injury, as defined. None of the cases before me give rise to this problem. It is agreed in all these cases that they do fall into the category of personal injury claims, based on a breach of duty.
- It is common ground that the advent of the Hoare and Young appeals, taken together with the decision in Lister, represented a very significant change in, or correction of, the law affecting these cases. Once the Section 33 discretion became available, the tactical considerations affecting each party took on a different appearance. All along, the primary facts of the abuse arose for proof: what was referred to in the hearing as 'the prior question.' However, before these changes, the claimants were faced with showing they had suffered abuse because of a system failure on the part of those responsible for employing or managing the abuser, since proof of abuse and of employment would not be enough to mount a case against the institution. Even then, the claimant faced the difficulty of showing that he or she had not acquired early knowledge of a significant injury for the purposes of Section 11 of the Act. It is obvious that to the extent these matters were difficult in prospect for a claimant, they made the position of the defendants more secure. It is clear, for example, from the evidence of Ms Barbara Taylor, Strategic Support Officer and later Team Leader in the Performance Management of the defendants, and from the helpful acknowledgement of Mr. Faulks Q.C. ,that the defendant's case preparation and approach in all of these cases, focused heavily on defending system and limitation, rather than on 'the prior question' of whether or not the allegations of abuse were true. I will return to this question later in the context of one or more specific cases.
- Turning to the question of knowledge, in the Hoare case, Lord Hoffman set out the approach to the question of knowledge to be followed henceforth, relevant to one of the cases with which I am dealing, that of DVB. At paragraphs 34 and 35, he said -
- This question was considered by the Court of Appeal following Hoare, in the case of Albonetti -v- Wirral Metropolitan Borough Council [2008] EWCA Civ 783. The leading judgment was given by Smith LJ, with whom the other Lords Justices were in agreement. The claimant alleged serious sexual abuse, including anal rape, whilst he was at a childrens' home, perpetrated on him by an abuser who was not in fact an employee of the home, but a friend of the couple who were in charge. The hearing of that appeal was held back until the decision in Hoare was available. The claimant argued that he had no knowledge within the meaning of the Act, because -
- This approach has not proved controversial between these parties, and I need spend no more time on it.
- How should a court now exercise the discretion under Section 33, in cases such as these, and in the light of the Hoare decision? As we shall see, there is some guidance on that point in the Hoare case itself. However, it will be helpful to consider some of the guidance given by the courts before the Hoare case was decided. I am grateful to Counsel on both sides for their help on this question. However, I do not intend to recite all of the passages brought to my attention, or every argument deployed.
- The statute itself makes clear that the fundamental question is "Would it be equitable to allow an action to proceed?" That is from Section 33(1), and whilst of course the court must have close regard to the various specific considerations recited in the section, those specific matters should not be treated as the question itself. The discretion is unfettered, as was recently reaffirmed by the House of Lords in Horton -v- Sadler [2007] 1 AC 307, and in Hoare, (see Lord Brown at paragraph 77.) In Horton -v- Sadler, Lord Bingham said , at paragraph 32:
- The Court of Appeal in KR -v- Bryn Alyn Community Ltd (CA) [2003] QB 1441, in the judgment of the court delivered by Auld LJ, addressed how the discretion should be exercised in cases such as this. Before I read a part of that judgment, it is important to recall that this case was decided after Lister, but before Hoare and Young. Whilst the outcome of Bryn Alyn was subsequently disapproved by the House of Lords in Hoare, and whilst it is conceded by Mr. Faulks that the approach set out in paragraph 80 of Bryn Alyn was held to be wrong by the House of Lords (and thus at least in some measure the approach to the exercise of discretion was criticised) it seems to me that a recent considered approach to this question by the Court of Appeal requires attention.
- Then in paragraph 74, the court set out a number of 'starting points', which it is not necessary for me to repeat, but which are of use and which I bear in mind and should be borne in mind, in any exercise of discretion. There is however one of those starting points which I do confess I find more difficult to follow than the others. I will therefore read that specific passage, and address it directly.
- With great diffidence, I do have some difficulty in following how the cogency of a claimant's case can be held to be neutral. An incoherent and weak case from an impecunious claimant will be likely to prejudice a defendant, who will probably defend successfully, but not recover the cost of doing so. That is easy to follow. However, it seems to me that a cogent and well-supported case for a claimant must usually argue at least to some degree in favour of the extension of discretion, since such a case would tend to carry the promise of a potentially fair trial, and since the implication would also usually be that a case which remains cogent and well supported after a lapse of time, would always have been more difficult to defend. I find it hard to think that it is usually equitable to refuse to extend the discretion because the claimant's case is weak, whilst it is also usually equitable to bear in mind how valuable is the limitation defence when the claimant's case is strong.
- I fully accept that there may be ostensibly strong cases, where a complete answer might have existed but has been lost. The court must be vigilant to look for that, remembering always that it is for the claimant to show that the discretion should be extended, not for a defendant to show that he is disadvantaged. In that regard, the key question is indeed the effect of delay on the defendant's ability to defend. I also follow the court's observations at paragraph 92 in Bryn Alyn, where they accepted from Mr. Faulks that there is a high level of difficulty in defending claims of this kind, and the danger which can arise of exaggeration and fabrication. Those remarks must be understood at least to some extent, in the context in which they were made in Bryn Alyn. The court was there dealing with an issue of system. As Mr. Maxwell has emphasised and I have already observed, the complex issue of system has dropped out of the picture in these cases.
- In the well known case of Dobbie -v- Medway HA [1994] 1 WLR 1234, the Court of Appeal upheld the decision of Otton J. as he then was, to decline to exercise discretion. The plaintiff had a breast lump excised in 1973, and found out soon after that the lump was not in fact cancerous. In 1988, she became aware that her breast need not have been removed prior to pathological examination, and in 1989 she issued proceedings for personal injuries, including psychological harm. In dismissing the appeal, Sir Thomas Bingham MR, as he then was, said at P.1244 D/G:
- Although Dobbie has often been thought a very hard case, it may be
- Before turning to Hoare and the cases that came after it, I wish to make reference to one more earlier authority. In Robinson -v- St. Helen's Metropolitan BC [2002] EWCA Civ 1099, the Court of Appeal upheld the refusal of his Honour Judge Mackay, sitting in the Liverpool County Court, to extend discretion under the Act in a case where the claimant had claimed educational failure had given rise to psychological injuries, as well as other consequences. In part of his judgment, Sir Murray Stuart Smith said this at paragraphs 32 and 33:
- The Hoare case, and in particular those parts of the speeches dealing with the conjoined appeal of Young -v- Catholic Care (Diocese of Leeds), contain specific guidance for the courts in the exercise of the discretion, reflecting both the change in the law contained in the decision itself, and the specific factual context of sex abuse. Lord Hoffman confirmed his view that consideration of the reluctance to take action, the denial or avoidance derived from the abuse, now arise under the question posed by Section 33 and the exercise of the discretion:
- Lord Carswell made a similar point in paragraphs 68, 70 and 72 -
- Finally, important guidance is given in the speech of Lord Brown at paragraphs 84 to 87:
- The approach to the discretion was considered in the light of Hoare by the Court of Appeal in Cain -v- Francis [2008] EWCA Civ 1451. In this case also, two appeals were conjoined, where Judges at first instance had taken different approaches. In this case also the leading judgment was that of Smith LJ. At paragraphs 57 to 59, her Ladyship observed that the notice of the claim to the defendants was important, that the length of the delay was not of itself the deciding factor, but rather, whether the defendant had suffered any evidential or other forensic prejudice; that the discretion, though unfettered, should be exercised consistently with the broad guidance offered by the higher courts, but that the historic authorities, despite leading to the same result on the points summarised, do not speak with one voice as to the underlying rationale of the law.
- In paragraphs 63 to 71 of her judgment, Smith LJ goes on to look at the principles and history of the law of limitation and the background to the discretion under Section 33, to touch on the different judicial approaches which have been expressed, and to consider the relevance of insurance cover. I need not repeat all of that superb exegesis of the history in this area. Her reasoning then culminates in paragraphs 72 and 74 and follows.
- To summarise: the discretion in these cases has to be exercised individually. It does seem clear in the speeches in Hoare, that some real significance has been attached to the specific factor arising in sex abuse cases, namely, that the tort inflicted by the abuser and for which the defendants are now vicariously liable, has itself the tendency to inhibit the victim from complaining, reporting or suing, even where the consequences do not include frank psychological and psychiatric injury. Such an effect was acknowledged by the defendants during the hearing before me. In an appropriate case, that must be a proper factor in the exercise of discretion,. I take that to be an important part of what was meant when their Lordships recommended a more liberal approach to the exercise of the discretion under Section 33.
- I address some further specific points which arose in the course of argument and which are relevant to these cases, and may be so for others in the larger cohort. The first is the relevance of convictions, and, indeed, acquittals.
- By the operation of Section 11 of the Civil Evidence Act 1968, a conviction is admissible in evidence and is proof that the person convicted committed the offence in question, 'unless the contrary is proved': see Section 11 sub-section (2) paragraph (b). As Mr. Faulks emphasised, there may be occasions when a defendant might wish to challenge the correctness of a conviction. In addition, there may sometimes be issues about the detail or extent of what is proved by a conviction. Accepting those caveats, no such specific point was suggested in any of these four cases.
- I find it difficult to see in the absence of some specific point how a relevant conviction would not weigh against a defendant, where the person convicted was the alleged abuser and the victim was the claimant. It cannot be the only point in the exercise of discretion by any means, but in my judgment, it would be hard to say in the absence of particular facts that a defendant is prejudiced by the lapse of time in defending a claim as to the 'prior question' of the fact of abuse, when there is a relevant conviction in play. If the extent of abuse is crucial and the evidence inaccessible, it may of course be so, and I remind myself that the discretion must be unfettered by this consideration, as by any other. This observation is nothing more than a practical starting point. This is very close to the reasoning of Coulson J. in his decision as to the exercise of discretion in A -v- Hoare [2008] EWHC 1573.
- An allied point is the potential significance of a conviction of a relevant kind against the relevant alleged abuser, but where the victim of the crime which is the subject of the conviction, is not the given claimant. In the course of argument, Mr. Faulks and Mr. Maxwell both accepted that in civil proceedings, a relevant conviction may be evidence of a propensity for sexual abuse (or indeed brutality or excessive violence). Mr. Faulks stressed the need to be careful, which I accept. There is clearly a potential risk of claimants 'jumping on the bandwagon', and a Judge will need to be astute to that risk, looking for example to see if allegations from a given claimant, even if made well after the suggested events, were made before the accused person had been prosecuted or convicted. However, subject to the appropriate caution such a conviction may be hugely significant.
- It appears to me that an acquittal of a charge which is in substance the allegation in civil proceedings, is capable of being neutral, given the different standard of proof between criminal and civil proceedings. However, depending on the circumstances, it seems to me also that it might properly form part of a Judge's consideration weighing against the exercise of discretion in favour of the claimant. The distinction will depend on the facts.
- Mr. Maxwell for the claimants argued that a want of expedition in investigating claims of abuse once raised with the defendants (for example, in the case of the alleged abuser James McEvoy) was capable of being 'conduct of the defendant after the cause of action arose' within the meaning of Section 33(3)(c). Mr. Faulks argued strenuously against this on the grounds firstly that this was to draw the court back into the allegations of systemic failure or negligence, and secondly, that it is a strained interpretation of the statutory wording, which he says plainly concerns itself with the conduct of legal proceedings. On this issue I prefer the approach of the defendants, for their second reason.
- If a claimant chooses to take a point on 'conduct' where system allegations have been abandoned, they cannot be prevented from doing so, even where the conduct alleged is in truth covering the same or similar territory as the abandoned allegation. There can be no bar to that. The court will then have to consider whether this matter can itself be properly tried out. The Judge would also have to consider carefully whether to try a limitation issue separately from the trial of the substantive issues. There may be a risk that 'preliminary' findings as to the defendant's system, would represent a premature set of findings on liability.
- It seems to me that the point taken here is not really one of the 'conduct' of the defendant for the purposes of the proceedings. Nor is it in truth a repetition of the allegations of a poor system, something which would be very much broader than the point being made. Moreover, it is not suggested that the failure to investigate, for example McEvoy; or anyone else as a consequence of what they were told about McEvoy, led to or permitted any abuse which is complained of in the proceedings. It is not said to be causative.
- This material, it seems to me, may nevertheless be relevant to the equity or fairness of permitting proceedings against St. Aidan's. If and to the extent that the defendants were warned that abuse was ongoing in their institution – and certainly specific abuse, or abuse by a specific individual, then in my judgment, depending on the facts, that might very well be a factor which can be taken into account, when considering whether the defendants are prejudiced by a lack of evidence about those allegations.
- Finally, I turn to the argument advanced by Mr. Maxwell that there is a public interest in having allegations of this kind tested in civil proceedings. I reject that. There is a definite public interest in having sex abuse or physical abuse investigated, and where appropriate, prosecuted. However, it does not seem to me that there is any identifiable public interest in civil proceedings going ahead. Civil proceedings are by definition private litigation between the parties. There is a very strong public interest in having a system by which private grievances can properly be tried, both at common law and within the terms of the European Convention of Human Rights. However, that is a different matter from any public interest in a particular class or description of proceedings, and even more so from a public interest in any particular case going ahead by means of a specific exercise of discretion.
- I turn now to approach the individual cases. In the JPM and JB cases, the findings of Holland J. are recorded in his judgment of 23 November 2006, in respect of JPM at paragraphs 13 to 29, and in respect of JB, at paragraphs 30 to 43. It does not seem to me necessary to repeat those findings, or to incorporate them in full into this judgment.
- Before dealing with his findings in detail and the cases individually, it is relevant to note that there were discussions in the Court of Appeal and indeed conclusions by the Court of Appeal, to the effect that the fact of abuse was proven or 'in the bag', a phrase which was used by the court in respect of each of these two cases. That is reinforced by the remark of Holland J. in his judgment at paragraph 55, where he said in respect of both these claimants, that they
- Therefore, the starting point in dealing with his findings is that he found proven abuse in both cases. The details or extent of that abuse, I do not regard as being necessarily proven. However, there is sufficient precision as to the findings for considering the exercise of discretion, and that was indeed the conclusion of the Court of Appeal when they remitted the matter for consideration, initially by Sir Christopher Holland himself.
- I turn first to the case of JPM. Here it is helpful to recite one passage from paragraph 16 of the judgment of Holland J. He said this:
- This claimant had been cross-examined in a very detailed way as to the detail of his account, as part of the evidence leading to those findings to which I have referred. At paragraph 23, the Judge concluded that this claimant was always aware of the serious impact of the abuse. The Judge accepted in paragraph 24 that JPM had tried to deny the effects, and had been inhibited from seeking advice from doctors and others, directly as a consequence of the abuse and the nature of the abuse. Indeed in paragraph 26 of his judgment, the Judge described the claimant as being "reasonably inhibited", meaning that the inhibition was comprehensible and reasonable, although he proceeded, given the state of the law he was then applying, to give little weight to that in his exercise of discretion, since of course at that stage such an inhibition fell to be considered in relation to knowledge..
- It is also helpful to look at another passage from Holland J's judgment in paragraph 28, where he dealt .with the specific considerations arising under Section 33. Under Section 33(a), as to the length of and reasons for the claimant's delay, he said this:
- Thus, he identified three factors which played on the claimant's mind. Of course I adopt those conclusions, although I have to apply them rather differently. The third consideration may also reflect, in my judgment, a belief on the part of JPM that he would never get relief.
- In looking at the impact of the delay, Holland J. recited his findings at sub-paragraph b) of paragraph 28. Given that abuse in general terms has been proved here, and given that system evidence is no longer relevant or is very much less so, the findings reached by the learned Judge required to be revised, in the light of the different way this case could be tried. The details of system which formed an important part of his thinking, fall away or largely do so.
- The question of causation is a separate one from system, and may be rather difficult to try in this case. The defendants say that they are hampered by loss of records, particularly prior to the claimant's entry to St. Aidan's. They rely upon the complexity of causation for JPM's problems, specifically on the impact of being a 'looked after child.' They emphasise that he has had many subsequent traumatic experiences. They emphasise that there is a strong difference of degree between the experts as to the extent and perhaps the nature of the consequences of what happened to JPM, and in that context, it is helpful to look at the agreed note of discussion between the two experts.
- The experts met on 31 October 2005, and as part of their joint answer to the fourth question set out in the note of their discussion, they said this:
- Resuming the quotation from the note,
- In my judgment, the agreed note and indeed the rest of the material, demonstrate that analysis of such cases is difficult, in general terms more so because of the passage of time. That must be right, but the dispute between the experts in this case actually represents a familiar dispute, a process of interpretation, about which experts can and do take different views. The difficulty lies mostly in the inherent problem, rather than anything to do with the passage of time, so far as I can tell in relation to this case.
- The conclusions of Holland J. in relation to conduct do not need any alteration. The conduct by the defendant appears not to be relevant here, it does not arise. Nor does disability, and in relation to the specific considerations in sub-paragraphs E and F, they are really covered by the findings I have already touched on.
- I consider whether it would be proportionate to exercise the discretion, bearing in mind the approach outlined by Sir Murray Stuart Smith. Would it be a proportionate step? I bear in mind here that the experts agree -
- It follows, therefore, that the issue is really causation. There may perhaps be dispute about abuse, but mostly the case will turn on the effect of the abuse and general damages. The analysis of credibility and the analysis of causation are, in my judgment, not radically affected by the passage of time. It is not of course for me to pre-judge the outcome of this dispute between the parties. The question is whether the dispute can fairly be resolved, and whether the defendants have been prejudiced to any significant degree. It seems to me that this abuse was bad, and that must be weighed to some degree in the balance. If a more liberal approach to S..33 discretion is to be taken in these cases, then on balance this is a proper case for the exercise of the discretion, and I so rule.
- I turn to the case of JB. In paragraph 31 of his judgment, Holland J. summarised the abuse alleged to have taken place in JB's case as being -
- It is plain that Holland J. having heard the evidence of JB ,was impressed by the anger and shame focused on the theme of homosexuality, evinced by JB in the course of his evidence.
- One notable aspect of this case is that JB gave an account in writing to the authorities of abuse by McEvoy to another boy, another inmate of St. Aidan's. In that manuscript account dated 30 July 1972, at that stage he did not suggest that he himself had been abused. That underpins how the shame of what had happened to him led to what is often termed denial, until the police investigation arose.
- That aspect of the case is well summarised by Holland J. in paragraph 36 of his judgment, which I need not repeat. In paragraph 37 of the judgment, the learned Judge recited his findings on the exercise of discretion in a slightly different format than he had done in relation to the previous claimant. However, he recited all of the matters which in his view meant it was clear that this claimant had knowledge from the beginning. In particular, he emphasised , as the joint note of the experts in this case confirms, that there was never any psychological condition which would prevent JB from complaining.
- There are two further important factual matters in the joint note of the expert discussion in this case. In this instance also the two experts were Dr. Wood and Ms Lovelock, the psychologist. They met on 4 November 2005, and as part of the answer to the seventh question recorded in the note, they said this:
- At paragraph 11.3 of his report dated 10 October 2005, Dr. Wood for the defendants said this:
- He also said at paragraph 22 of an earlier report, revised into its final form on 29 September 2005, as follows, reading from paragraph 22.1 -
- In my judgment, the causation question here is rather more complicated than that in the case of JPM. Miss Lovelock's views do not seem to be as unequivocal in the reasoning she advances. Here there is a history of criminal offending, both before and after the admission to St. Aidan's. There was a loss of employment in the 1980s through back trouble, before JB spoke to the police about the abuse in his past and before his psychological symptoms worsened, as they did at that stage. Therefore, there is no claim for loss of earnings. There is a claim for some handicap in the labour market. It seems to me that would probably be difficult to achieve, though I make of course no finding on that.
- In terms of the specific criteria under the Act, firstly in relation to sub-paragraph a), the length of the delay is somewhat less than that of JPM, but it is still long. As found by Holland J., this claimant had no thought of suing. There was a clear inhibitory effect. It is to be noted this is much less serious sex abuse than in the case of JPM.
- When considering the extent of delay, the evidence adduced would be less cogent, but this mostly bears on the issue of system which has gone. The primary abuse is proven, although its detail might need to be elaborated. There was a pre-existing disorder. There is a range of missing documents here, which both sides agree might have quite a degree of significance for causation. The causation issue seems to me to be more complex than in JPM. The trial of that issue seems to me undoubtedly to be affected by time. Dr. Wood gives some ascription in what seems to me, with great respect to him, to be rather a throwaway and clearly very approximate conclusion. On the facts of this case that cannot act to set aside the difficulty of causation.
- The conduct of the defendant does not arise here. Nor is there any history of disability, meaning that limitation should be suspended in time. I have dealt already with delay by the claimant, and of the steps taken by the claimant in what I have said.
- In considering whether it would be proportionate to exercise a discretion here, I do bear in mind that this again is a general damages only claim. It seems to me that causation evidence will mean a trial of experts, involving the assessment of a previous psychological disorder which will not necessarily be straightforward. It is not a large claim, on any view.
- Is it equitable to let the action proceed, with all of those considerations in mind? Accepting that abuse has been proved here and that this claimant has been believed, I bear in mind that the House of Lords has made clear that cannot be the only consideration. Not every abused person, even where that is established, can proceed. The nature of the abuse here is much less stark. On balance, I do not extend discretion in the case of JB.
- I turn to the case of DB. DB was born on 21 January 1964, and brought up in the Denton area of Greater Manchester. He is the middle child of five, and by his own account, grew up in a difficult and poor family. He recites that he was often beaten by his father, who was subject to a violent temper, and by the age of 12 or so, he had become very difficult to control. He was by then regularly truanting from school. On his account, his home was one where he was not permitted to show his emotions, and if he did, he would be told that he was soft and be sent to his room. He felt unable to tell anyone about his problems.
- When this claimant got to secondary school, he did not try hard, and he began to get into trouble. There is a useful contemporaneous source as to his background narrative contained in the report from Chris Tucker, the claimant's social worker, dated 16 December 1980. This gives a history of previous court appearances, beginning with a burglary in July of 1977, when the claimant was 13 years of age. This was followed by further offences of theft and burglary, which led to a Care Order in June of 1978, with further offences of burglary to follow in 1978 and 1979. Mr. Tucker's report recites how, in the last year he was at home, the claimant ran away on a couple of occasions, fearing his parents' discipline after an extended period of truancy. It is clear from that report, and indeed from the claimant's own account, that the family relationship had come under very considerable strain.
- Whilst in care, the claimant was placed in a childrens' home, an unsuccessful placement, and he then went for the first time to St. Aidan's. This first placement ended when the claimant was convicted of a further offence of burglary, and on 14 August 1979, was sent to Whatton Detention Centre for three months.
- After release from detention, the claimant returned to St. Aidan's, initially to the main building, but after a period of good behaviour, he was transferred to one of the units, which he describes as "more like being in a house." To his memory, there were something like 12 lads in each unit. The housemaster in the claimant's unit was a man called Colin Dick.
- Colin Dick has subsequently been convicted of significant sexual offending in relation to his time at St. Aidan's. On 7 June 1995, Mr. Dick entered pleas of guilty to some of the counts on a 16 count indictment, all relating to his period at St. Aidan's. I have had the advantage of seeing the record of the proceedings before the Chester Crown Court on 7 June 1996, which records that -
- The offences were either indecent assault or buggery. The counts on the indictment related to ten different complainants, all male, and all the offences taking place between 1978 and 1981. The offences in respect of which pleas were entered, relate to four of the ten complainants, and between them, straddled the entire period from the earliest to the latest point recited in the indictment. The most serious offences of buggery also range from Christmas 1978 to a period between July 1980 and June 1981.
- Although DB was not a complainant in any count on the indictment, he had given a statement to the police alleging sexual offending against him by Colin Dick. The statement is dated 27 March 1995, and has been admitted in evidence. The essential elements of the account set out in that statement are that Dick was friendly to all of the lads living in the unit, including the claimant, and indeed over friendly, permitting them to enter his flat at will, to smoke and to drink alcohol. The claimant then told the police how about two to three months after moving into the unit, which must take us to a date somewhere in the middle of 1980, making the claimant 16 at the time, Colin Dick returned to the flat from a public house, having drunk a good deal, sat down beside the claimant, put his arm around him and started to kiss him on the lips. Dick told DB how he did not want to 'shag him or anything like that', but did want to show how much he loved him, the claimant.
- Then the evidence goes on as follows:
- The claimant told the police in 1995 that he had never told anyone about what had happened until talking to them.
- In his evidence to the court, DB confirmed the content of his witness statement, to the effect that there was one episode of sexual abuse only with Colin Dick. Following that episode, he had a strong reaction against his abuser, and sought to avoid him as much as possible. He ran away from Colin Dick. He said:
- He returned to his family home from St. Aidan's and had been resident there for sometime when he committed the offence leading to the report from Mr. Tucker, dated 18 December 1980. The claimant's witness statement at paragraph 32 recites this offending as handling stolen goods, but that is in conflict with the contemporaneous report of Mr. Tucker. The claimant was fined and made to pay compensation, in respect of the burglary.
- Between 1980 and 1995, this claimant led a troubled life. He abused alcohol, cannabis, LSD and amphetamines. He married when he was young at 21 or 22, and the relationship with his wife Paula was violent throughout the marriage. On his own account, the violence was usually as a result of drink or drugs. He also said in evidence that he drank for other reasons,
- It is also to be noted that he did have frequent and sustained, if not continuous, employment over those years, and was regarded as being a good workman. His employment was in a variety of unskilled or semi-skilled jobs.
- The claimant's evidence is that telling the police of what had happened with Colin Dick, was something he immediately regretted;
- As some of the expert evidence recites, the claimant's then wife Paula herself had a history of abuse, which may have made it difficult for her to deal with his problem.
- At the time of making this statement to the police in March 1995, the claimant was married but had no children. His daughter was conceived relatively soon thereafter, and was born in February of 1996.
- The claimant's general practitioner records are available from 1980 onwards. The records between 1980 and 1998 are moderately sparse, and they are all concerned with physical ailments of a fairly unexceptional kind. They do not make reference to the alcohol and drug abuse or to domestic violence, which on the claimant's own account, was continuing. There is a change in this pattern as from 19 October 1998. The claimant then complained to his general practitioner of panic and anxiety, reciting that he was drinking too much, and that he had been caught drunk driving. His relationship had problems, and he was at that stage trying to adopt his brother's children, who had in fact lived with him for four years. The general practitioner's note goes on,
- For the next short period, the claimant's alcohol abuse was addressed, albeit not with any final success and the claimant's marriage broke down finally in December 1998. The narrative and medical records show that over the following years, this claimant had a stormy course, with continuing problems with alcohol and indeed recurrent domestic violence with a further partner, which led to at least one conviction for assault. The claimant's account of that is that he was in fact defending himself from his drunken partner, but he accepted responsibility for what took place in that incident, so that the couples' children would not be taken into care. I make no findings about any of that.
- Both sides have sought expert assistance in relation to DB. For the claimant, Lesley Cohen is a clinical psychologist, who saw him first as long ago as 27 December 1999, and has seen him again much more recently, on 10 October 2008. Ms Cohen has had access to a fairly full range of medical records and other documentation. She has not indicated any difficulty in reaching conclusions about the claimant. Her central conclusion is that there was indeed a reaction to this suggested sexual abuse being brought out into the open in 1995, which is best perceived as being a chronic adjustment disorder coming to a crisis in 1998.
- The defendant's solicitors have instructed Dr. Wood, a consultant psychiatrist, who saw the claimant and reported first in November 2003. Dr. Wood had access to the medical records which then existed, both from the general practitioner's practice and from the various specialists who had been involved. He too does not indicate that he has had any difficulty in reaching conclusions about the case. Dr. Wood's opinion is that DB would have suffered psychological difficulty in adulthood in any event, and that he has done reasonably well in life, considering the start he had prior to going into care. He continues as follows:
- Dr. Wood goes on to state that psychometric tests suggest the claimant has been malingering, by consciously exaggerating his symptoms at the time of his assessment, and that the claimant should be regarded as an unreliable informant.
- It is helpful to add two passages from the report, beginning with paragraph 22 itself, which is the discussion after the report,
- At paragraph 33.2, Dr. Wood concludes -
- It follows that there is a relatively narrow issue between the experts. They agreed this is a man with a lot of problems. They agreed that if his account of events is to be accepted at all, there was an adjustment disorder or reaction to the police involvement, but it is not of major consequence and it is limited in time. It arose in relatively recent years.
- As I have already noted, there is a conviction here of the abuser in June of 1995 for four counts of buggery and three of indecent assault. He received four years imprisonment. This is, in my view, powerful evidence in favour of the claimant's case that there was actually abuse in the case.
- In this instance, and only in this case of the four before me, the claimant suggests that there was a lack of knowledge until a late date, sufficient so that the proceedings were initiated within the primary limitation period. It is claimed that the claimant had no knowledge of a significant injury until he was told medically in 1998 to 1999 that the psychological problems leading to referral for therapy, derived from the sexual abuse.
- I am not persuaded by this. This was not a casual fondling, but oral sex. Appreciating that there was only one episode of oral sex, it had a marked effect on the claimant at the time. He avoided Mr. Dick immediately. His reaction against what happened was strong. These are powerful indicators of the fact that even at that age he realised that what had happened to him was a significant assault. Anyone would recognise what happened on his account to be a significant assault.
- I will not repeat the wide judicial guidance which I have recited earlier in this judgment on the approach to this issue. Given the facts of this case, it is clear that the claimant had knowledge of a significant injury for the purposes of Section 11 and Section 14(1)(a) of the Act.
- I turn to discretion. Considering the sub-paragraphs within section 33(3): first, the length of and reasons for delay. The abuse took place here in October to November 1979. Therefore, the primary limitation period would end three years from this claimant's majority, that is to say, on 21 January 1985. His police interview was on 27 March 1995. By 26 March 1997, he received a letter from the defendant's solicitors, enquiring about whether he was concerned about sexual abuse at St. Aidan's. On 14 June 1999, he had got as far as to have an application for Legal Aid made out, and by 30 March 2001, proceedings were issued. Therefore it follows there was a period of over 22 years from the abuse to the issue of proceedings and 16 years from the end of the primary limitation period. It is a long delay, but it is to be explained by the claimant's avoidance of referring to the sexual abuse and its consequences. That may be so specifically on the case because although there was a significant injury at the time, in the sense of a significant sexual assault, the psychological consequences for the claimant arose only from 1995 onwards. Within two years or so of the beginning of the effects of the reawakening of these events for DB, these defendants were aware that he was in question as the victim of sexual abuse in St. Aidan's.
- I do bear in mind that the key issues here being that of causation, they relate in fact to the later 1990s, and are limited in extent.
- Will the evidence of the key issues be made less cogent by the passage of time? The fact of abuse, it seems to me, will not be made less cogent in this case. There is no possibility that a convicted abuser such as Mr. Dick, would realistically have been called as a witness to deny a single episode of this kind, given the convictions in his case. Even though those convictions do not relate to this claimant, as I have said, they are powerful evidence supportive of his account as to the fact of abuse. As I have already observed, the key medical issues here are more recent, although still old by now, given the dreadful delay which has happened in these cases since the issue of proceedings. The issues are narrow and seem to me well capable of resolution. There is little loss of cogency as to the trial of the medical issues, causation and what happened in late 1990.
- There is, I find, no relevant conduct on the part of the defendant, and no question of disability, and the considerations on this case thrown up by sub-paragraphs e) and f) have been covered.
- Is it proportionate that an action should proceed on these facts? The damages here would be relatively limited, but this is not trivial abuse, even though it is a single incident. This matter should be capable of a short trial. It will need active case management to ensure that it is kept within bounds, given the basis upon which discretion has been exercised, but given that consideration also, it seems to me possible to have a fair trial. Therefore it is both proportionate and equitable to permit this case to proceed, for the reasons stated.
- I now turn to the last case of the four, that of HC. HC was born on 15 August 1960 in Lennoxtown, Glasgow. His family moved to Lytham St Anne's in 1969. About the time he was 12, he was already getting into trouble in the courts, acquiring a conviction for carrying a loaded air weapon in a public place in August 1973. His offending continued as he was made the subject of a Care Order by the Fylde Juvenile Court on 6 February 1974. He was involved in repeated offences of theft and burglary throughout 1974 and into 1975, and he also underwent placements at Woodend Assessment Centre and Greenfield House, before being sent to St. Aidan's.
- HC's own evidence was that he thought he had spent two spells in St. Aidan's, the first being a period of residence there before he went to the detention centre in January 1975. However that may be, the documentary evidence before the court confirms that he was admitted or perhaps readmitted to St. Aidan's on 23 April 1975, when an entry appears in the admission ledger showing he arrived on that day. His police national computer record shows that on that day he appeared again before the Fylde Juvenile Court for an offence of burglary and other motoring offences, and was given a two year conditional discharge.
- By his own account, HC was already rebellious and defiant, and very difficult to control. He regularly tried to abscond, essentially because he preferred the freedom and excitement of being out and on the run. He absconded on 23 June and was returned on 2 July, having been in custody from 24 June after being arrested for offences committed during the absconsion. He absconded again on 25 July, and returned on 28 July. He absconded again with two others, namely Edwards and Pemberton on 21 September, returning on 24 September. The corporal punishment book of St. Aidan's for 24 September records that HC, Edwards and Pemberton were punished on that day. It was recorded, "Committed offences for which the police intend to take no action." Those offences it is written down were reported by Kendal police and social workers. Under the column "method of punishment", it is recorded that Edwards received "six strokes posterior over trousers", and HC and Pemberton received three strokes each. There is no entry under the columns "by whom administered" or "signature of witness."
- HC's account of the beatings he received from Mr. Hoskin are in essence that he was beaten more than once by him using a cane. He told the police that,
- In March 1997, HC gave evidence at Mr. Hoskin's trial at the Chester Crown Court. He was cross-examined by leading Counsel for the defence about the details of the latest beating, the last beating, which he said he received at Mr. Hoskin's hands. No doubt because of the entries in the punishment book to which I have made reference, he was asked if the Kendal police were involved at all in that last beating, and he said "No, that is when we escaped earlier on the time before." He went on to confirm to Counsel that on the relevant occasion, it was the St. Helen's police and not the Kendal police who had been involved with his offending.
- We find the following sequence with HC a little later in the transcript.
- When the defendant Mr. Hoskin was taken to these entries, he confirmed that the entry for 24 September 1975, although incomplete, was in his handwriting, and he would have administered the punishment on that occasion. Hoskin denied ever caning a boy on his bare flesh or caning a boy without a witness present, or ever giving more than six strokes of the cane.
- In his police statement of October 1994, HC had mentioned canings only, or assaults in the course of a caning. No doubt for that reason, the prosecution case against Mr. Hoskin in relation to HC was confined to a single count of assault occasioning actual bodily harm, one of 21 counts on which Mr. Hoskin was convicted in relation to boys at St. Aidan's. These counts ranged through indecent assault on a male, assault occasioning actual bodily harm and buggery. In the course of his evidence to the Crown Court, HC described in addition to the caning, an incident where Mr. Hoskin had 'slapped him about a bit one night' and made him stand with his head against a wall or glass window, and that before being made to stand like that, he had been told to remove his pyjamas. This description took Counsel for the Defence and, indeed, Counsel for the Crown by surprise, although Counsel for the Crown emphasised that it was a description similar to others which had already been given in evidence in the case by other witnesses.
- HC's witness statement adopted as part of his evidence before me, is dated 10 October 2008. There must of course have been earlier versions which were for the purpose of preparing the case and settling pleadings. In the course of this witness statement, HC describes the canings as follows:
- He also described to me an assault from Mr. Hoskin after a table tennis match, in which the claimant says he, the claimant, beat Hoskin at the game and was beaten physically by him afterwards. In paragraph 16 of the re-amended particulars of claim, based no doubt on the witness statement, that was said to be a Christmas competition. Yet, of course, as appears from the amended dates in the admission, HC was never in St. Aidan's at Christmas.
- In the course of his witness statement and in his evidence to me, HC was engagingly frank about his significant criminal career between leaving St. Aidan's and the period, many years later, when he told the court he had finally ceased to offend. He said he had paid tax for the last five years. That is to say, five years before this hearing, but not before then. He was a career criminal. There is no need for me to recite his convictions, but they are significant and repeated, and he acknowledges frankly that much of his offending was not detected. He told the court that he had been shot at by police, that he had been assaulted much more seriously in later life than he had by Mr. Hoskin, including one incident where he received defence injuries to his left arm, as he fended off an axe attack. He does not seek to say that his criminal life is a consequence of what happened to him when beaten by Mr. Hoskin, although he does describe St. Aidan's as giving him an education in crime.
- HC has also been eloquent in evidence, as in his witness statement, and indeed to the experts, as to the fact that he was upset and disturbed by being asked by the police to give a statement, by being asked to go to the Crown Court and generally by these matters being revived in his mind.
- There was a considerable volume of medical evidence relating to this claimant, although I will be able to summarise it very briefly. He was seen in August 1999 by Dr. Al-Ahmar, a psychologist who did not give evidence before the court. He described to her the table tennis episode, including loss of consciousness and the loss of a tooth. Mrs. Lesley Cohen saw HC in October 2008 at short notice and for a short period. She did not perform a full assessment, but did have the benefit of reading the papers, including the Al-Ahmar report, the assessment report from the defendant's expert Dr. Graeme McGrath, of 20 September 2003, and a reasonably full run of general practitioner records. She administered the trauma symptom inventory, which in her view confirmed the absence of concern about his truthfulness in recording symptoms.
- Her conclusion in evidence to me was essentially that HC was very angry about what Mr. Hoskin had done, but that he had not and never had had any kind of psychological disorder. Thus it follows that on her evidence, he has never had a psychiatric or psychological personal injury.
- Dr. Graeme McGrath is an independent consultant psychiatrist in full time medico-legal practice. He reported on HC for the first time on 20 September 2003. He then concluded that HC demonstrated no sign or symptom of mental or nervous disorder. He concluded that there was no evidence there had ever been any kind of psychological disorder. This represents, in effect, an agreed conclusion between the two sides. Dr. McGrath does suggest that HC may have exaggerated or altered his account of events.
- Both experts also agreed that there was no specific psychological reason in the sense of any disorder, which contributed to the delay in HC beginning proceedings.
- It is important to bear in mind that in relation to this case, this is not sexual abuse. None is alleged here. It seems to me that excessive punishment could not possibly be thought to carry the same stigma as sexual abuse, or to bring in its train the same inhibition from reporting, addressing or discussing what took place. There is no shame in being beaten by a brutal teacher.
- HC's account of his reasons for delay are in any event different. He said very frankly he never thought about suing, until the matter was raised with him. He was "a criminal, and criminals are not believed." He never thought he could get compensation, and he said, again rather engagingly, that he did not believe he would get compensation from me..
- My conclusions as to this before applying the discretion, can be simply stated. HC's account to the police in his witness statement and to me, taken together with the evidence of the Crown Court, Mr. Hoskin's conviction in relation to HC and his convictions in relation to others, combine to make it credible that HC was beaten excessively and abusively by Mr. Hoskin at least once. However, the passage of time, and at least to some degree HC's capacity as a historian, mean that it would be very difficult for a court to reach reliable conclusions about the detail and extent of what really happened. It seems to me that it is in the highest degree unlikely that the passage of time has robbed the defendants of any live witness who would be prepared to be called and could say anything material, and to that extent the delay is not likely to have affected justice. It is the effect of time on HC as a historian and the absence of any extraneous evidence, which brings the difficulty in his claim. There is no claim for lost earnings, although there is a claim, I imagine out of an abundance of caution, for a handicap on the labour market.
- I turn now to the specific considerations under the section. The chronology is again simply stated. HC was born in 1960. The abuse is as I have said, in 1975. He made a statement to the police on 21 October 1994. Hoskin was convicted in 1996, and the claim was issued in 1997. There was therefore a 19 year delay before the statement to the police, and a 22 year delay to the issue of claim. There cannot be said to have been a long period of delay between the statement to the police and the criminal proceedings and the claim. Those are relatively close together in time, but of course many years after the relevant events.
- I have dealt with my factual conclusions as to the reason for delay by the claimant. There is no significant inhibitory factor produced by the abuse here. It is simply that he did not think he could sue, but he was told that he might. It seems to me very likely that he did not think about all of this at all, either about the abuse, or even less, any remedy for it. I recognise that HC told me that he was periodically angry about this, but in the midst of a life such as the life he has led, I am sceptical as to whether that would persuade a Judge as to any particular reason for delay apart from indifference.
- As to the ways in which the evidence at the trial is likely to be less cogent as a consequence of delay, I have dealt with that. Time has undoubtedly, in my judgment, muddled and extended the claimant's story, and on his own evidence, never mind anything else, it would be very difficult to disentangle the truth.
- The defendants here did have ample time to explore events from 1997, from the time of the conviction onwards. It might well have been possible for them to do so at that stage, but the evidence they found would be unlikely to help on the fact of abuse. It may have had an effect on the extent or detail of abuse. It follows, that it seems to me there is little prejudice to the defendants from the sheer passage of time, and that is not the key element in my decision.
- There is no relevant conduct here, nor is there relevant disability. I have dealt in effect with sub-paragraphs e) and f). There was knowledge of an assault, there was knowledge of its consequences in terms of upset.
- Would an action be proportionate? Here the damages would be likely to be very modest indeed, on what might conceivably be proved. Even a carefully case managed case, kept to what was absolutely essential, would be likely to cost far more than any compensation for the claimant, and I bear that strongly in mind. I therefore conclude that it would not be equitable in this case to permit the action to proceed, and the discretion is exercised accordingly.
MR. JUSTICE IRWIN:
Introduction
The Law - Limitation
"The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is dis-applied, he is deprived of his vested right to defeat the plaintiff's claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way, does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant."
"In Letang -v- Cooper [1965] 1 W.B. 232, an attempt was made to escape from this new three year limitation period. The plaintiff had been sunbathing on the grass in the car park of an hotel, when the defendant drove his car over her legs. The accident happened on 10 July 1956, but the plaintiff did not issue her writ claiming damages for personal injuries until 2 February 1961, which was outside the three year limitation period provided by the Act of 1954. This accident was obviously one to which the three year limitation period was intended to apply, but in an attempt to escape the consequences of failing to issue a writ within the three year time limit, the plaintiff's legal advisers claimed in both negligence and trespass to the person. This manoeuvre succeeded before the trial Judge, who held that the defendant had been negligent, but went on to hold that the phrase 'negligence, nuisance of breach of duty' in Section 2(1) of the Act, did not include an action for trespass to the person, so that the plaintiff had six years in which to bring her claim. If this decision was correct, it would have nullified the effect of Section 2(1) of the Act, for all claims for personal injuries could henceforth be framed in trespass and thus be subject to a six year limitation period. It is not therefore surprising that the Court of Appeal reversed the decision of the Judge, and held that Section 2(1) applied to the plaintiff's claim, which was thereby statute barred.
Lord Denning M.R. solved the problem by holding that the only cause of action lay in negligence and was thus statute barred. He said at page 240, 'When the injury is not inflicted intentionally, but negligently, I would say that the only cause of action is negligence and not trespass.' However, he also went on to hold at page 241, that if he was wrong and the plaintiff has a cause of action for trespass to the person, he would hold that the phrase 'breach of duty' covered a breach of any duty under the law of tort. Danckwerts L.J. agreed with both Lord Denning MR's reasons for allowing the appeal. Diplock LJ held that on the facts pleaded, the cause of action was one in negligence within the meaning of Section 2, and that the period of limitation was therefore three years. But he also held at page 245, that the words 'breach of duty' should be construed as applying to any cause of action which gives rise to a claim for damages for personal injury. Leave to appeal to the House of Lords was refused, and there the matter has rested until the present case."
Section 11(1):
"This section applies to any action for damages for negligence, nuisance or breach or duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
11(2):
None of the time limits given in the preceding provisions of this Act shall apply to an action for which this section applies.
11(3):
An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
11 (4)
Except where subsection (5) below applies, the period applicable is three years from:
(a) the date on which the cause of action accrued, or:
(b) the date of knowledge (if later) of the person injured.
(11(5) is not relevant)
Section 14(1):
Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts-
(a) that the injury in question was significantly; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty: and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of Law, involve negligence, nuisance or breach of duty is irrelevant.
and 14(1A) is not relevant)
Section 14(2):
"For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. "
Section 14(3):
"For the purposes of this section a person's knowledge includes knowledge which he might reasonably;
(a) the facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advise which it is reasonable for his to seek,
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and where appropriate, to act on) that advice. "
Section 33(1):
"If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree which--
(a) the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
The court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."
Section 33(3) :
"in acting under this section the court shall have regard to all the circumstances of the case and in particular to-
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, in any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."
"'Personal injuries' includes any disease and any impairment of a person's physical or mental condition, and 'injury' and cognate expressions shall be construed accordingly."
"In the present case the principal argument in the Court of Appeal focused upon whether or not the plaintiff knew she had suffered significant injury over three years before she commenced her action on 18 August 1987. The plaintiff's case was that although she knew she had been raped by one defendant and had been persistently sexually abused by the other, she did not realise she had suffered sufficiently serious injury to justify starting proceedings for damages, until she realised that there might be a causal link between psychiatric problems she had suffered in adult life and her sexual abuse as a child. The Court of Appeal after consideration hesitation, accepted this argument on behalf of the plaintiff. If it was necessary to decide the point, I should not have found it easy to agree with the Court of Appeal. Personal injury is defined in Section 38 of the Act of 1980 as including 'any impairment of a person's physical or mental condition', and I have the greatest difficulty in accepting that a woman who knows that she has been raped, does not know that she has suffered a significant injury. The Criminal Injuries Compensation Board ever since its inception almost 30 years ago, has been making substantial awards to the victims of rape, varying between about £6,000 and £20,000, and since the enlargement of the scheme in 1979, this has included victims within the family setting. Sexual abuse that goes no further than indecent fondling of a child, raises a more difficult question, but some of the plaintiff's allegations are so serious that I should have had difficulty in regarding them as other than significant. However, I do not find it necessary to resolve this difficult issue, as I accept the first submission made on behalf of the defendants, which is that Section 11(1) does not apply to a cause of action based on indecent assault or rape, for which the limitation period is six years and which is not subject to extension under Section 11."
and at 507 C/D -
"I accept that Letang -v- Cooper was correctly decided in so far as it held that negligent driving is a cause of action falling within Section 2(1) of the Act of 1954. But I cannot agree that the words 'breach of duty' have the effect of including within the scope of the section all actions in which damages for personal injuries are claimed, which is the other ground upon which the Court of Appeal decided Letang -v- Cooper. If that had been the intention of the draftsman, it would have been easy enough to say so in the section. On the contrary, the draftsman has used words of limitation; he has limited the section to actions for negligence, nuisance and breach of duty and the reason he did so, was to give effect to the recommendation of the Tucker Committee that the three year period should not apply to a number of causes of action in which damages for personal injury might be claimed, namely damages for trespass to the person, false imprisonment, malicious prosecution or defamation. There can be no doubt that rape and indecent assault fell within the category of trespass to the person."
508 A/D -
"Even without reference to Hansard, I should not myself have construed breach of duty as including a deliberate assault. The phrase lying in juxtaposition with negligence and nuisance, carries with it the implication of a breach of duty of care not to cause personal injury, rather than an obligation not to infringe any legal right of another person. If I invite a lady to my house, one would naturally think of a duty to take care that the house is safe, but would one really be thinking of a duty not to rape her? But, however this may be, the terms in which this Bill was introduced, to my mind make it clear beyond peradventure that the intention was to give effect to the Tucker recommendation that the limitation period in respect of trespass to the person was not to be reduced to three years, but should remain at six years. The language of Section 2(1) of the Act of 1954 is, in my view, apt to give effect to that intention, and cases of deliberate assault such as we are concerned with in this case, are not actions for breach of duty within the meaning of Section 2(1) of the Act of 1954.
The language of Section 2(1) of the Act of 1954 was carried without alteration into the Act of 1975 and then into Section 11(1) of the Act of 1980, where it must bear the same meaning as it had in the Act of 1954.
It thus follows that the plaintiff's causes of action against both defendants were subject to a six year limitation period."
".... it is not necessary to ask the simplistic question whether in the cases under consideration the acts of sexual abuse were modes of doing authorised acts. It becomes possible to consider the question of vicarious liability on the basis that the employer undertook to care for the boys through the services of the wardens and that there is a very close connection between the torts of the warden and his employment. After all, they were committed in the time and on the premises of the employers, whilst the warden was also busy caring for the children."
He concluded at paragraph 28,
"Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration, the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability."
Lord Clyde, Lord Hutton and Lord Hobhouse agreed with Lord Steyn. So did Lord Millett, who however added illuminating reasoning and conclusions in paragraphs 82 to 84 of the Report as follows:
(82) "In the present case, the warden's duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that in itself is not enough to make the school liable. The same would be true of the groundsman or the school porter. But there was far more to it than that. The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school's responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys. It is not necessary to conduct the detailed dissection of the warden's duties of the kind on which the Supreme Court of Canada embarked in Bazley -v- Curry 174 DLR (4th) 45 and Jacobi -v- Griffiths 174 DLR (4th) 71. I would hold the school liable.
(83) I would regard this as in accordance not only with ordinary principle deducible from the authorities, but within the underlying rationale of vicarious liability. Experience shows that in the case of boarding schools, prisons, nursing homes, old peoples' homes, geriatric wards and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust.
(84) I would hold the school vicariously liable for the warden's intentional assaults, not (as was suggested in argument) for his failure to perform his duty to take care of the boys. That is an artificial approach based on a misreading of Morris -v- C.W. Martin & Sons Limited. The cleaners were vicariously liable for their employee's conversion of the fur, not for his negligence in failing to look after it. Similarly in Photo Production Limited -v- Securicor Transport Limited, the security firm was vicariously liable for the patrolman's arson, not for his negligence. The law is mature enough to hold an employer vicariously liable for deliberate, criminal wrongdoing on the part of an employee, without indulging in sophistry of this kind. I would also not base liability on the warden's failure to report his own wrongdoing to his employer, an approach which I regard as both artificial and unrealistic. Even if such a duty did exist, on which I prefer to express no opinion, I am inclined to think that it would be a duty owed exclusively to the employer and not a breach of duty of which the employer could be vicariously liable. The same reasoning would not, of course, necessarily apply to the duty to report the wrongdoing of fellow employees, but it is not necessary to decide this.
(85) I would overrule Trotman -v- North Yorkshire County Council [1999] LGR 584 and allow the appeal."
Knowledge
(34) "I respectfully think that the notion of the test being partly objective and partly subjective is somewhat confusing. Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally 'subjective' in the sense that it is applied to what the claimant knows of his injury, rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed 'objective' knowledge under Section 14(3). But the test itself is an entirely impersonal standard; not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings, but whether he would 'reasonably' have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under Section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(35) It follows that I cannot accept that one must consider whether someone 'with [the] plaintiff's intelligence' would have been reasonable if he did not regard the injury as sufficiently serious. That seems to me to destroy the effect of the word 'reasonably.' Judges should not have to grapple with the notion of the reasonable unintelligent person. Once you have ascertained what the claimant knew and what he should be treated as having known, the actual claimant drops out of the picture. Section 14(2) is, after all, simply a standard of the seriousness of the injury and nothing more. Standards are in their nature impersonal, and do not vary with the person to whom they are applied."
"although [he] must have known that he had suffered a great wrong, he would not have known that he had suffered a significant injury. The pain had been transitory, and such bleeding as had occurred, had stopped by the following morning."
At paragraph 24 of the judgment, Smith LJ said the following:-
"I cannot accept that submission. In my view, a person who has been raped, whether vaginally or anally, must know that she or he has suffered not only a grave wrong, but also a significant injury. That was the view expressed obiter by Lord Griffiths in Stubbings -v- Webb [1993] AC 498 HL at page 506 B, and I respectfully agree. He drew a distinction between an allegation of rape and lesser forms of sexual abuse, such as fondling, which might not amount to a significant injury. Here, the allegation of anal rape by more than one man on more than one occasion cannot, in my view, sensibly be regarded as anything other than a significant injury."
And at paragraph 32 she added -
"For the avoidance of doubt, I wish to make it plain that I am not suggesting that, in every case of abuse, the victim must be taken to have known at the time that he has suffered a significant injury. I quite accept that, where the abuse is of a less obviously intrusive nature, a different conclusion might be reached."
Discretion
"The court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case, and in particular, the six matters listed in sub-section (3)",
The Court said this:
(68) "The discretion of a Judge under Section 33 is fettered only to the extent that it provides a non-exhaustive list of circumstances to which he should have regard. However, the matter is not determined simply by assessing comparative scales of hardship; Long -v- Tolchard & Sons Ltd [2001] PIQR p18. The overall question is one of equity, namely whether it would be 'equitable' to dis-apply the limitation provisions having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case, including those specifically mentioned in Section 33(3): Nash -v- Eli Lilly & Co [1993] 1 WLR 782 and Whitfield -v- North Durham Health Authority [1995] 6 Med LR 32, 39 per Waite L.J.
(69) The width of the discretion is such that an appellate court should not intervene, save where the Judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement is possible: Coad -v- Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189, 197, per Ward L.J. That includes the exercise of wrong principles, taking account of irrelevant factors, ignoring relevant factors or the making of a decision that is 'palpably' or 'plainly wrong: Farthing -v- North East Essex Health Authority [1998] Lloyd's Rep Med 37 and Margolis -v- Imperial Tobacco Limited [2000] MLC 204. If the court intervenes on any of those grounds, it should treat the matter as at large and exercise its own discretion in accordance with Section 33.
(70) The Court of Appeal has not considered the application of Section 33 to claims of long standing psychiatric injury alleged to have resulted from sexual and/or physical abuse in childrens' homes. Given the width of the discretion, the extent to which the court can give general guidance on the exercise is limited. The task for a Judge is particularly difficult and various [sic.] in cases such as this, where he has to decide whether he should attempt to determine and evaluate what happened many years before, often on little more than the uncorroborated and un-checkable assertion of a complainant. Where, as in these appeals, there is a history of pre-care abuse supplemented by a post-care lifestyle each, individually or cumulative, capable of causing or aggravating psychiatric harm, the further difficulty of determining the fact of injury and its extent and causation is formidable. The Judge, in granting the second defendant permission to appeal on this issue, did so because he regarded it as in the public interest to enable the Court of Appeal to consider what guidance it could properly give on the matter.
(71) Claims long after the event for damages for sexual and/or physical abuse of children in homes where they have been placed in care are a relatively recent, but growing, phenomenon. Many claimants, before being taken into care, have had troubled backgrounds, including sexual and/or violent abuse, and arrive in the homes in a highly disturbed sate. And, often, leaving them, their lives deteriorate into alcohol and drug abuse and crime. The claimants who bring these appeals are typical of such case histories. Stripping away legal niceties, the question for the Judge under Section 33 was whether, given the delays, he could fairly try claims that the first defendant had culpably failed to improve the claimants' physical and/or mental condition and/or had culpably caused it to worsen.
(72) As Mr. Faulks's analysis in argument demonstrated, that exercise required the Judge to anticipate a variety of issues to which, if the matter were to proceed to trial, different evidence would go. The nature of the prejudice either way resulting from delay, and the equity in allowing the matter to proceed, may vary according to the issue. As we have said, the Judge here had to consider the exercise of his overall discretion in the light of three main issues: first, whether and to what extent each claimant had been abused whilst at Bryn Alyn; second, whether such abuse resulted from the first defendant's negligent failure to prevent it, an issue that required consideration of the standard of care reasonably expected at the time of the abuse; and third, whether and to what extent the claimant had suffered injury attributable to that abuse."
(viii) "Where a Judge has assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, he should keep in mind in balancing the respective prejudice to the parties that the more cogent the claimant's case, the greater the prejudice to the defendant in depriving him of the benefit of the limitation period. As Parker LJ showed in Hartley -v- Birmingham City District Council [1992] 1 WLR 968, 979, such a finding is usually neutral on the balance of prejudice.
In all, or nearly all cases, the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were dis-applied, will be equal and opposite. The stronger the plaintiff's case, the greater is the prejudice to him of the operation of the provision and the greater will be the prejudice to the defendant if the provision is dis-applied ... as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision, the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend."
"In reliance on these provisions, it was argued that the court's discretion should be exercised in the plaintiff's favour. The delay in bringing proceedings was caused by her belief, fostered by the health authority, that she had been properly treated. Most of the salient facts were not in dispute and most of the evidence was documentary. The case could be tried without prejudice to the health authority, despite the lapse of time.
The Judge did not consider it equitable to allow the action to proceed. He held that the evidence would be less cogent than if the action had been brought timeously, that the health authority would be prejudiced on the issue of consent, that the plaintiff should reasonably have taken advice sooner and that the time had come when the surgeon should not have to meet this complaint.
I approach this aspect on the basis that the plaintiff is a grievously injured woman who has suffered much and whose claim, if allowed to proceed, might prove to be very strong. But the delay in this case, after the date of actual knowledge, is very lengthy indeed. The plaintiff could have taken advice and issued proceedings years before she did. Sympathetic though anyone reading these papers must be to the plaintiff, it would in my judgment (as in that of the Judge) be unfair to require the health authority to face this claim arising out of events which took place so long ago. I would dismiss the appeal on this ground also."
that an important factor necessary for a proper understanding of the decision, does not emerge well from the report. Although there was no medical necessity to proceed to mastectomy before the pathology was known, there was a question as to whether Mrs. Dobbie would in fact have wanted to wait. That key causation question would have turned on a retrospective factual analysis of what advice the surgeon would have given and how Mrs. Dobbie would have received it, a very difficult issue to try at the best of times. It is also worth bearing in mind the stark nature of what Mrs. Dobbie did know soon after the event: her breast was removed, and that was very shortly proved to be medically unnecessary. Moreover, Mrs. Dobbie was an adult and then unaffected by any psychological injury, fully capable of responding to a situation by taking advice then and there.
(32) "The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendants might have been able to rely on are not available or have no recollection, and there are no documents to assist the court in deciding what was done or not done and why. These cases are very time consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim, rather than teach. Under Section 33, the onus is on the claimant to establish that it would be equitable to alow the claim to proceed having regard to the balance of prejudice.
(33) The question of proportionality is now important in the exercise of any discretion, none more so than under Section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try. A claim that the claimant's dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant's majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant."
This approach was expressly approved by the House of Lords in Adams -v- Bracknell Forest BC [2005] 1 AC 76, and I find it helpful.
(42) "Mr. Brown, who appeared for the appellant, put forward an alternative argument that, even if the test which Section 14(2) applied to the injury as known to the claimant was entirely impersonal, the claimant in this case could not be said to have had knowledge of his injury. This was because, according to the evidence of the claimant, supported by an expert witness, he had 'blocked out his memory', or, in another metaphor which he used in evidence, put his memories 'in a box with a tightly sealed lid in the attic.' He was, he said, 'in denial' about the psychological injuries which he had suffered.
(43) I do not doubt the value of these explanations of the claimant's mental processes when it comes to an assessment of whether he could reasonably have been expected to commence proceedings. But they are difficult enough concepts to apply in that context and I do not think that Section 14(2) was intended to convert them into even more difficult questions of epistemology. If one asked an expert psychologist whether the claimant 'really' knew about his injuries, I expect he would say that it depends on what you mean by 'know.' And he might go on to say that if the question was whether he 'knew' for the purposes of the Limitation Act, it would be better to ask a lawyer. In my opinion the subsection assumed a practical and relatively unsophisticated approach to the question of knowledge, and there seems to me to have been much sense in Lord Griffiths's observation in Stubbings -v- Webb [1993] AC 498, 506 that he had 'the greatest difficulty in accepting that a woman who knows that she has been raped does not know that she has suffered a significant injury.'
(44) This does not mean that the law regards as irrelevant the question of whether the actual claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings. But it deals with that question under Section 33, which specifically says in subsection (3)(a) that one of the matters to be taken into account in the exercise of the discretion is 'the reasons for ... the delay on the part of the plaintiff.'
(45) In my opinion that is the right place in which to consider it. Section 33 enables the Judge to look at the matter broadly and not have to decide the highly artificial question of whether knowledge which the claimant has in some sense suppressed counts as knowledge for the purposes of the Act. Furthermore, dealing with the matter under Section 14(2) means that the epistemological question determines whether the claimant is entitled to sue as of right, without regard at any injustice which this might cause to the defendant. In my view, it is far too brittle an instrument for this purpose. There are passages in the judgment of Buxton LJ which suggest that, had he not been bound by Bryn Alyn, he would have shared this opinion.
(49) That brings me, finally, to the approach of the Judge and the Court of Appeal to the exercise of the discretion. In Bryn Alyn [2003] QB 1441, paragraph 76 the Court of Appeal said that the Judge in that case had gone wrong in giving undue weight to his conclusion that 'the claimants' reasons for delay were a product of the alleged abuse ... and that, accordingly, it would be unjust to deprive them of a remedy.' These matters, said the Court of Appeal, were more appropriately considered under Section 14. I am of precisely the opposite opinion, and if your Lordships share my view, the approach to the discretion will have to change. In Horton -v- Sadler [2007] 1 AC 307, the House rejected a submission that Section 33 should be confined to a 'residual class of cases', as was anticipated by the 20th Report of the Law Reform Committee (Cmnd 5630) (1974) at para 56. it reaffirmed the decision of the Court of Appeal in Firman -v- Ellis [1978] QB 886, holding that the discretion is unfettered. The Judge is expressly enjoined by sub-section 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."
(68) "It is in my opinion incorrect to import the circumstances, character or intelligence of the claimant into the determination of reasonableness under Section 14(2). It is irrelevant whether the claimant is intelligent or unintelligent or whether his personal characteristics or his circumstances may influence his decision not to sue at that time. Some people are more robust than others and would shrug off the possibility of suing for the injury (a possibility more likely in the case of minor conditions than in the example I have given). Others may be temperamentally averse to making the effort to institute proceedings, or to appearing in court, or may be unable or unwilling to risk incurring the costs. Some may feel too ill to contemplate litigation. What is material in determining if the injury is significant within the meaning of sub-section (2) is whether a reasonable person, possessed of the facts known or available to the claimant, would consider the injury sufficiently serious to justify instituting proceedings for damages, assuming that the defendant will not dispute liability and is able to satisfy a judgment. Under this construction of Section 14, some claimants with merit on their side will undoubtedly fail, but those characteristics or circumstances to which I have referred can and should be taken into account in the exercise of the discretion under Section 33 to dis-apply the limitation provisions, as I shall explain in more detail below……..
(70) If, as I think to be the case, Section 14 should be construed in this manner, which is less favourable to a claimant, there requires to be a more liberal approach to the exercise of discretion than has always been the case. For the reasons which my noble and learned friends and I have set out, that less favourable construction of Section 14 is correct in principle, but it must follow that the favourable factors which have hitherto been taken into account in reaching a conclusion under Section 14, should form a part, and in appropriate cases a very significant part, of the Judge's determination in exercising his discretion under Section 33……….
(72) There is a further reason why the discretion should be exercised afresh. Since the House has decided to depart from is decision in Stubbings -v- Webb, Mr. Young will no longer have to force his case into the Procrustean bed of systemic negligence. He will be able to invoke Sections 14 and 33 of the Limitation Act 1980 in respect of a claim for assault by the employees of the respondents, if, as appears to be correct, the respondents are held vicariously liable for them under the principles in Lister -v- Hesley Hall Ltd [2002] 1 AC 215. On this basis, as Lord Brown points out in paragraph 85 of his opinion - with an important qualification in paragraph 86 - the quality of the evidence may not be as adversely affected by the lapse of time and the extent of the factual disputes may be reduced, which would tend to lessen the prejudice to a defendant occasioned by that factor."
(84) "With regard to the exercise of the court's discretion under Section 33 of the 1980 Act, however, I would make just three brief comments - not, let it be clear, in any way to fetter a discretion which the House in Horton -v- Sadler [2007] 1 AC 307 recently confirmed to be unfettered, but rather to suggest the sort of considerations which ought clearly to be in mind in sexual abuse cases in the new era which your Lordships are now ushering in, first, by departing from Stubbings -v- Webb, and secondly, by construing consideration of the inhibiting effect of sexual abuse upon certain victims' preparedness to bring proceedings in respect of it.
(85) First, 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 Hoffman suggests, at paragraph 52, that is likely to bear significantly upon the possibility of having a fair trial.
(86) Secondly, through the combined effects of Lister -v- Hesley Hall Ltd and departing from Stubbings -v- Webb, a substantially greater number of allegations (not all of which will be true), are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing. If, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the Section 33 discretion in his favour. On the contrary, a fair trial, (which must surely include a fair opportunity for the defendant to investigate the allegations, - see section 33(3)(b),), is in many cases likely to be found quite simply impossible after a long delay.
(87) Hitherto, the misconstruction of Section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffman at paragraph 36). It is not to be supposed that the exercise of the court's Section 33 discretion will invariably replicate that position."
(72) "A claimant's position is different. He has a substantive right, his cause of action, but he cannot proceed with it because of the operation of Section 11. He has therefore been prejudiced by the loss of the right to enforce his cause of action. That prejudice is greatly reduced if he has a good claim over [sic] against his solicitor. In a case where the defendant has suffered some forensic or procedural prejudice, which will diminish his ability to defend himself, it will be relevant to consider that the claimant has another remedy. But the fact that the claimant has a claim over will not necessarily mean that the direction should be refused. It might still be fair and just that the defendant remains in the frame. It is the defendant who has, ex hypothesi, committed the tort and, as Lord Denning M.R. pointed out, it is his insurer who has received the premiums in respect of the relevant risk. So the fact that the claimant will not suffer financially in the end is relevant but not determinative.
(74) Although the delay referred to in Section 33(3) is the delay after the expiry of the primary limitation period, it will always be relevant to consider when the defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence: see Gwentoys. If, as here, a defendant has had early notification of a claim and every possible opportunity to investigate and to collect evidence, some delay after the expiry of three years will have had no prejudicial effect."
Lord Justice Maurice Kay and the Chancellor of the High Court agreed with her.
Specific Further Points
The Individual Cases
"Have had the satisfaction of being heard and believed."
The case of JPM
"I was satisfied that when giving evidence, the claimant was doing his best to give me a fair and truthful history. Thus, as to the abuse itself, his account has been reasonably consistent, and, notwithstanding the acquittal of Hepburn, it is understandably not been challenged before me. As to the subsequent 38 year period, (1968 to 2006), his account is of virtual necessity blurred and broad brush, but his bona fides are to my mind clear, even if his reliability is inevitably more open to question."
He concluded that JPM knew what had happened to him, and realised that that was clearly a significant injury.
"As to reasons for the delay, there appear to be three. First, the claimant's hope that he could cope. the symptoms. by avoidance and alcohol. Second, the inhibitions on the complaint discussed above, and third, the claimant's lack of interest in compensation, as appeared from his police statement and his evidence to me."
"If the court is of the view that JPM has had PTSD, Dr. Wood is of the view that this has been no more than minor as a condition. Ms Roberts regards this as having been severe. In terms of aetiology, Dr. Wood is of the view that adverse experiences in care will have made a minor contribution to such symptoms as JPM has experienced, as described within his report. Dr. Wood recognises that abuse in care, if credited, is likely to have aggravated JPM's problems in establishing stable relationships, and his tendency to drink to excess."
I break off to note that this means that even the defendant's expert feels here that there has been an effect from abuse, if abuse is proved.
"It is Ms Roberts' opinion that in the absence of predisposing adverse childhood events such as physical abuse and neglect, the most likely explanation for adult difficulties is the alleged sexual abuse, which has been exacerbated by further negative adult experiences. In assessing the extent of any harm arising from the alleged abuse in care, it is Dr. Wood's view that there are difficulties, in that JPM appears to have exaggerated his symptoms to Helen Roberts and to Dr. Wood. Ms Roberts is of the opinion that whilst exaggeration is a possibility, there are other explanations for invalidating scores on some test results. These include physical illness, substance misuse, trauma and the circumstances of psychometric testing. We agree that all sources of information, including documentation, clinical interview and psychometric results should be taken into account when formulating an opinion."
"Any adverse effects upon the claimant's physical and mental health arising from the alleged abuse in care, have not extended to causing JPM any occupational disadvantage."
The case of JB
"Excessive and arbitrary corporal punishment" and "sexual groping on three occasions by a house master, Mr. James McEvoy."
"We agree that JB showed evidence of a conduct disorder prior to going into care, and that he has outgrown this as he has progressed through adult life. We agree that his status as a 'looked after' child indicates that, whether or not he was abused in care, he will have been at a disadvantage compared with children and young people who have not been 'looked after' on leaving care in any event. We agree that the claimant's brothers fared better in life than did the claimant. He was the only one of the family that had gone into care. A combination of these two effects, pre-care factors and the legacies of being 'looked after', independent of his having been sexually abused, have not resulted in a disorder of clinical severity at the present time. They will have made a contribution to his conduct as a young adult soon after leaving care."
It follows that the experts agree that there was a prior psychological disorder before ever this claimant went to St. Aidan's.
"In my view, it would be reasonable for the court to regard the claimant as having had a minor adjustment disorder in his late teens and early adult life, characterised by anxiety in terms of undressing in front of others and of closed spaces and a mistrust of authority figures. It would be reasonable to conclude that he had a post traumatic stress disorder at or around the lower levels of clinical significance, for a year or two following police intervention. If the court credits the claimant's account of matters, this may have been a re-emergence of symptoms he experienced in his late teens",
and he goes on to analyse why that might be so.
"This appears to be a case where pre-care factors arose. anyway, and the alleged abuse in care have each contributed to the claimant's problems as an adult. I estimate that the attribution can be divided 60% pre-care, 20% alleged abuse in care and 20% the process of being in care generally."
It follows that at least in that one passage, the defendant's expert does venture some attribution on a percentage basis.
The case of DB
"All offences committed at St. Aidan's Community Home. Police considered it better to accept the pleas offered, than put the victims through a three week trial."
"He then started to play with me. He put his hand on to my penis over my trousers. I was fully clothed. He then undid my trousers. I was totally numb. I felt trapped. I just sat there. He then had oral sex with me. I could not believe what was happening. He continued until I ejaculated, and I think he used a tissue to clean it up, but I cannot be sure."
Essentially the same account is recited in the claimant's witness statement in these proceedings.
"Really it was just self-preservation. I did not want to go through that again, and I also feared that if he did anything to me again, it would escalate, which absolutely terrified me. At the time I thought a lot about what had happened, and wondered if I was homosexual."
"For the reasons an alcoholic needs to drink."
"It dragged me into the past, and all that I tried to push down, was suddenly in front of me and would not go away. I felt it was 'present' again. It was like it had just happened. It was not new for me. I told my wife why the police had been round, that I had been abused. It was news to her. It did not help our relationship, in fact it made me more isolated."
"Abused as a child in care. Been contacted by the police to make a statement to get compensation. Feels need to talk. Brandy started everyday, and brandy when has money. Job as welder."
The general practitioner then referred the claimant for counselling and signed him off as being sick. The counselling was intended to focus on the alcohol abuse.
"Assuming the court accepts his account of matters, DB reacted badly to his memories of childhood sexual abuse being re-awakened in the course of a police investigation. It is likely that he suffered an adjustment disorder of moderate intensity, lasting around three years as a result of this. In due course, DB has made a good recovery from this reaction, and his prognosis is now good."
"I am largely in agreement with Mrs. Cohen's analysis of this case. A significant percentage of DB's difficulties in life should be attributed to his genetic inheritance and pre-care childhood experiences. The alleged sexual abuse DB suffered was comparatively minor, when compared with that experienced on a repeated basis by many of the claimants in historical/sexual abuse litigation. The history here is one of DB suffering psychological difficulty, when his memories of being abused were brought to the fore by the police investigation. In the course of our assessment, the claimant was not found to be a reliable informant. He is probably exaggerating the symptoms in relation to the alleged sexual abuse.
If the court accepts the claimant's account of matters, the diagnosis of adjustment disorder, anxious and depressed type, is a reasonable one. Anxiety, depression and a tendency to drink to excess were associated with this process. There does not appear to be any other significant sexual discussion in the case. Further to receiving appropriate treatment, DB has made a good recovery. His drinking is under control, his drug abuse is largely behind him and he is able to function normally."
"Assuming the court accepts his account of matters, DB reacted badly to his memories of childhood sexual abuse being reawakened in the course of the police investigation. It is likely that he suffered an adjustment disorder reaction of moderate intensity, lasting about three years as a result of this, and in due course DB has made a good recovery. His prognosis is now good."
The case of HC
"I would say that I was caned at St. Aidan's on four occasions, and each time it was by the man I have just described. The canings always took place in an office, which was on the left-hand side as you went into the main school doors. The canings usually followed the same routine. There was only ever me and the headmaster or deputy….."
I interpose, by that he meant he did not know whether the man was the headmaster or the deputy.
"..... in the office. I would be told to take down my trousers and underpants and then to bend down. I was then caned on my bare buttocks. During these canings, I do not remember being touched in an indecent manner. One particular occasion which I can clearly recall was the last time on which I was caned. I had absconded from the home with Mark McCall from Fleetwood, Terry Edwards from Lancaster and Donald Pemberton from Oldham, and we all committed a burglary in a private house in St. Helen's."
HC went on to describe to the police how it was following being questioned in relation to the burglary in St. Helen's, that he was caned on that last occasion.
"Question: So you were taken to the Magistrates?
Answer: Yes, and then we were conditionally discharged, and then I went back to St. Aidan's and I was only there a matter of weeks and we escaped again, and then we did the burglaries at St. Helen's, and then in November of that year, I got Borstal for the burglaries at St. Helen's.
Question: But if the records show that it was the second occasion, the occasion when you went to Borstal and you were returned by the Kendal police, that does not accord with your recollection, I understand?
Answer: The Kendal police took us to Lytham. I do not think they ever took us back, unless they waited until after court. I know it was a police officer who took us back the first time",
The entries in the punishment book were then the subject of quite considerable cross-examination, followed by discussions between Prosecution Counsel, Defence Counsel and the Judge. All of this formed part of the evidence in the case, and was heard by the jury.
"There were many instances, generally too many to mention, where I had to go to Hoskins' room and be stripped and caned over my back and buttocks. It was simply horrible, and the pain too great to describe. The embarrassment was also terrible."
This account is a development again of what had previously been contained in HC's account.