England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
SITTING AT CHESTER CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/05/2010

Mr Justice Irwin:

Introduction

1. These cases form part of the "Nugent Care Society Group" which has had a considerable forensic history. Following the appeals in relation to three of this group of cases (heard together with another case with similar subject matter) before the Court of Appeal in the summer of 2009, which judgment was reported as AB and Others –v- Nugent Care Society [2009] EWCA Civ 827, these cases have been tried before me. In the light of the observations of the Court of Appeal in that case, in particular at paragraphs 25 and 26 of the judgment, these three cases have proceeded by way of hearing all the evidence (or in the case of JPM all the additional evidence) necessary to deal with limitation, liability, causation and quantum.

JA - The Factual Evidence

2. JA was born in Liverpool on 18 May 1956, and then bore a different surname. He changed his name by deed poll in the 1980s. I have seen a number of statements from him: those made to the police on 13 November 1997, 10 June 1999, 17 August 2000 and 14 September 2000. He also produced a full statement for these proceedings dated 26 March 2009. I also heard from JA giving evidence in person.
3. It is common ground that JA had an impoverished and problematic family life. Before he went into care, he lived in the Seaforth area of Liverpool as the oldest surviving child of ten. His father was an alcoholic. The marriage was unhappy and his mother was violent. There was a good deal of obvious poverty, with a lack of heat at home, few if any new clothes and bullying by other children because of his poverty. Some of the physical abuse from his mother was quite serious. On one occasion, JA describes his mother making "all of us putting our hands on a red hot cooker in order to punish us". On one occasion at least, JA was hospitalised because of injuries caused by her.
4. JA was bullied at school and often truanted, even from primary school. By the age of 10 or 11, he started running away from home. He also started offending. On 7 May 1969, his then headmaster filled out a report to the Liverpool County Juvenile Court in anticipation of JA's appearance there for an offence of theft. At that point, the Claimant was just short of his 13^th birthday. He had attended for 24 out of 120 days. His conduct was poor although it was noted when he was present he gave little trouble in disciplinary terms. The teacher recorded "appears to be a solitary individual – his only friend was 'my little brother'.
5. JA was taken into care when he was 13 years of age. He described being approached in the street by two social workers, along with his next brother down. He states that he was "cornered…..in a phone box and told [he] was going to be taken into care".
6. After being taken into care he was sent back to the Woodend Centre in Leigh for assessment. He was there for a shortish period during which he describes suffering violence on two occasions from teachers but with no significant consequences.
7. From Woodend, the Claimant was sent to St Aidan's, being admitted on 21 October 1969, where he remained until May 1971. Although he describes himself arriving with high hopes, that changed rapidly. JA says the atmosphere at St Aidan's was very far from an atmosphere of "care".

"It seemed to be a place where people had brought their problems with them and the staff just made it worse. It was common knowledge amongst myself and the other younger boys that some of the staff were 'beasts' i.e. abusers."

8. The person who is said to have abused JA was a Mr McEvoy, a teacher at the school, since deceased. McEvoy often acted as a "sleeper-in": one of the teachers who stayed in a separate partitioned-off room attached to the junior dormitory, during a night duty. McEvoy abused the Claimant, on his account, within the first week of his arrival at St Aidan's. He accepts that when signing a statement for Criminal Injuries Compensation he had said that it was "after a couple of weeks". He agrees that he was

"not being precise when I said that. In my first statement to the police I said that the first incident with McEvoy was in my first week there and I stand by that."

9. Before being assaulted by McEvoy the Claimant had "seen him around and I had learnt his name". But he did not know him as he had not been taught by him. The Claimant arrived in St Aidan's in late October 1969 and he gave his earliest statement to the police in November 1997, thus 28 years later.
10. The second event of which the Claimant complains in respect of McEvoy took place about one month later. The Claimant was pushed into a room containing a toilet also at night and then "groped". On this occasion he remembers McEvoy grabbing his genitals and rubbing himself with an erect penis against his back.
11. The third occasion of abuse is described by the Claimant as being the worst. It was a few weeks beyond the second incident and McEvoy was again the sleeper-in. The Claimant had to get up in the night to go to the toilet. As he came out, McEvoy was standing in the hallway facing him. McEvoy was wearing pyjamas, and his erect penis was poking through the flies of the pyjamas facing the Claimant. He is said to have grabbed the Claimant's hand and pulled it down onto his penis, whilst manoeuvring him back into the toilet. McEvoy pulled his head down and told him to suck his penis, but the Claimant kept his mouth shut and would not perform oral sex. In the face of that refusal, McEvoy pulled the Claimant back up, pulled down his pyjama trousers, turned him around and masturbated until he ejaculated over the Claimant's back, buttocks and legs. JA says that he did not cry out. He thought that it was "par for the course" and was again too frightened to tell anyone.
12. The Defendants emphasise there are discrepancies between the different statements from JA, giving an account of abuse by McEvoy, which they say point to a lack of accuracy on JA's behalf. The first incident was described in the November 1997 police statement as the Claimant being grabbed from behind beside the toilet. According to this statement the person who did this was a large man who grabbed him from behind.

"One hand went around me and straight down the front of my pyjama trousers……his hand grabbed hold of my private parts and I mean grabbed. He squeezed and it hurt."

In this version the Claimant stated:

"I later learned this man's name was McEvoy. He was a teacher but I never went to any of his classes and can't remember what he taught."

13. In that original police statement, the further two incidents are described in similar terms to the Claimant's evidence to me: the second incident is described expressly as 'groping' and the third as attempted oral sex which JA resisted and which was followed by masturbation.
14. None of the three subsequent police statements deal with the detail of abuse.
15. In the Claimant's Criminal Injuries Compensation Authority statement made in June 1999, the summary of abuse is short but somewhat different. There were three episodes of abuse by McEvoy, whereby he "came to my bed at night, and made me masturbate and fondle him. He did the same back to me. This happened on two occasions in my bed and one occasion in the bathroom next to the dormitory. The last incident I found to be the most frightening of all."
16. The Defendants point out that the accounts pleaded in the original versions of Particulars of Claim were also different from the original statement. In the first pleading the account was that the Claimant was "approached in bed" and "forced to indulge in mutual masturbation", and that on the third occasion he was "forced to perform oral sex". They add that in the original police statement, JA said that, after these three incidents, McEvoy "never bothered me again after that. I thought he would, but he didn't". However, in his 2009 witness statement, the Claimant mentioned two or three additional groping episodes which he treated as unimportant.
17. The Claimant's expert evidence comes from Ms Helen Roberts, Forensic Clinical Psychologist. I will address her evidence on causation later in this judgment, but at this stage I consider her evidence as it bears on this Claimant's credibility. She first saw the Claimant in September 1999. In paragraph 7.1 of that Report she reported JA as stating that "McEvoy indecently assaulted him, made him masturbate him and perform oral sex". The account of actual oral sex is thus consistent with the CICA statement but not with the original police statement, the recent witness statement or the Claimant's evidence to the Court. Ms Roberts has accepted that this was an error on her part, a concession which the Defendants suggest may not be accurate and may have been given too readily.
18. Having seen the detailed handwritten notes made by Ms Roberts at the time of interview with JA, the description of abuse which is in her report is not set down there. It may be that when she came to write her report three days after the interview, she gave her brief description simply from memory. Certainly the notes concentrate very heavily on the Claimant's borderline psychological development and the overall history, and mention of the facts is very brief.
19. When the Claimant came to make his statement for these proceedings the Claimant addressed the description of the abuse by Ms Roberts. He said the description was not right:

"I don't know whether I got confused when trying to explain it or whether she misunderstood what I was trying to tell her but I resisted McEvoy's attempt to get me to masturbate him and perform oral sex on him."

20. The Claimant is quite clear that there was worse and more extreme physical and sexual abuse from other inmates at St Aidan's, than from Mr McEvoy. McEvoy's abuse was shocking and undermining because he was a teacher. However, the three episodes of which he complains were all that transpired from McEvoy. No other member of staff sexually abused him. The physical and sexual abuse by other pupils was much more extreme. It can be summarised as bad beating, followed on occasions by penetrative anal rape. The Claimant's witness statements include a reasonable degree of detail as to these episodes and as to who carried them out.
21. Both to the police and in the witness statement drafted for these proceedings, the Claimant states that he did not complain to staff about the older boys because:

"I would have had my head kicked in by them [the older boys] and so I didn't. I kept my mouth shut. Also what was the point of complaining about abuse when the staff themselves were abusing you."

22. In his report Dr Peter Wood, the psychiatric expert for the Defendants recites that the Claimant told him he had made numerous complaints about the treatment he got from the other boys. JA stated that he had not said this to Dr Wood and had no idea where he got it from. Dr Wood's notes from the original consultation with the Claimant of 25 November 2003 have been retrieved and the relevant passages read:

"Older lads: abused him: he was buggered: several occasions: by two at one time: - he lost interest. Comparatively new there

Did make complaints – not listened to "it happened. No one bothered." St Aidan's was a horrendous place. Absconded from St Aidan's quite a few …….. – (went to) Wood End, not abused: I made a complaint in court regarding treatment at St Aidan's. Nil done."

23. Dr Wood explains in his letter of 27 April 2009 that his handwritten notes are made as he goes along and his notes are often a little "patchy". But he regards them as supporting his account of what the Claimant said as reported in paragraph 9.11 of his Report.
24. In their joint note prepared for the hearing, the experts agree that JA was generally an open informant who provided consistent accounts of his history. Each of the experts agreed that, in differing language, when they came to give oral evidence before me.
25. It seems to me that Dr Wood's notes are clearly consistent with the way he wrote his Report and much less naturally consistent with the Claimant's account. This has to be borne in mind as to the Claimant's credibility, set beside the rest of the evidence. At the very least, the Claimant was telling Dr Wood that he complained about this treatment at St Aidan's. The context was one of sex abuse. It is just possible that the Claimant meant he complained more generally about St Aidan's without mentioning sex abuse explicitly.
26. In assessing the relative impact of the abuse by McEvoy and the abuse by the other boys, the Claimant was clear that what the boys did was more physical and more painful, but in his mind what had happened with McEvoy as a member of staff was more worrying to him, in effect because McEvoy as a member of staff should have been able to be trusted and was in a position of authority.
27. It is common ground that the Claimant absconded many times from St Aidan's and was brought back. Eventually he simply refused to go there again and was sent to "St Thomas More", an institution where he has told everyone he was very well treated. He did well at Borstal, and although he was very angry and upset as a young man, he ceased to offend in his early twenties and has not offended since. It is also common ground that he has a long term relationship which works fairly well, has been in work through most of his adult life and has generally speaking overcome the difficulties of his early life to a great degree. However, as I shall shortly recite, both experts agree he has not been unaltered by those difficulties.
28. I should also record that the Claimant gave his evidence in a moderate and clear way. Whilst obviously tense, he gave me no impression of an attempt to exaggerate or distort what had happened to him.
29. With specific relevance to limitation, this Claimant made it plain (as most others have done) that he did not realise any legal action was possible until after the police investigation, and indeed his evidence is that he learned of this from the television news coverage of such claims following this police inquiry. As with others, he too had done his best to put the whole experience behind him. He had not spoken of it to anyone, and would not have wished to. In effect his whole effort was to suppress this part of his life until the police investigation brought the affair back. It was only after that, and with encouragement from his partner, that he sought legal advice. Thereafter he did take legal advice within quite a short period. It seems to me this bears on the credibility of his evidence generally.
30. As with the other cases in this group, it goes without saying that the period since issue has been far too long, but it is not suggested that has been in any sense the responsibility of this Claimant.

Corroborative or conflicting factual evidence

31. A number of witnesses were called, or statements admitted, in support of the Claimants in these cases, in some cases giving evidence which is relevant to more than one case.
32. A long list of witnesses have made allegations of abuse against McEvoy of a similar kind. This list includes the Claimant RM whose evidence I address below. Paul Bolger, now deceased, first alleged abuse by McEvoy in 1972, a claim which led to an investigation of McEvoy at that time. He repeated these allegations in a police statement on 28 November 1995.
33. James Cranny was a witness due to appear before me, who refused to attend. He made a witness statement in 2005 and another in 2006. I am not aware of whether he made statements to the police, or of their date if he did. He has been involved in some very serious criminal activity in the course of his life. He made violent threats to the process server, according to the Civil Evidence Act Notice. It seems to me that little reliance can be placed on this witness statement, although it can take its place alongside the other evidence.
34. Desmond Gardener alleged sex abuse by McEvoy in a police statement dated 7 November 1996. He made a total of three police statements, confirmed by a witness statement in these proceedings of 3 March 2005. Mr Gardener has no claim himself. He has failed to respond to a number of messages seeking his attendance at Court. This witness describes how McEvoy grabbed his testicles from behind, over clothing, whilst Gardener was stripping wallpaper, and then suggested that they should remove their clothes and "have a proper wrestle". Gardener states that he complained about the episode, and was shortly afterwards removed from St Aidan's. He did not give oral evidence. This evidence is of a similar nature to JA's account and cannot be tainted by self-interest.
35. Patrick McQuinn gave a witness statement in these proceedings, again alleging abuse against McEvoy. Once more he is not a Claimant. He could not be found at his latest known address and thus did not give oral evidence. I have seen no police statement, but his civil witness statement suggests that he made allegations initially to Detective Constable Higgins at the time of the investigation in the late 1990s, and there is no reason to doubt this. The witness statement in these proceedings is dated April 2005. McQuinn makes allegations against McEvoy, which are again similar to those of JA. This witness describes McEvoy as using discarded half-smoked cigarettes as bait; as initiating wrestling or play-fighting sessions; then when sleeping in on the dormitory, McQuinn suggests McEvoy grabbed his penis and genitals inside his pyjamas following a trip to the lavatory. McQuinn's account is that he complained to the Headmaster, and shortly thereafter, McEvoy left the school. McQuinn's understanding is that others complained at around the same time, although he had no discussion of these events with any of them. The statement provides no dates for these events.
36. James Browne was a Claimant within this group until his claim was dismissed by me on grounds of limitation. When a boy at St Aidan's, JB was a friend of the deceased witness Paul Bolger. Bolger and JB effectively "blackmailed" McEvoy for sweets, cigarettes and money, based upon McEvoy's abuse of Bolger. This episode became known to the school authorities, led to an investigation by the headmaster in 1972, which in turn means that there is a handwritten account of these events by JB surviving from 1972. In the course of that account, JB supported allegations of abuse by McEvoy against Bolger, but there is no mention of abuse by McEvoy on JB. This is nevertheless a significant contemporary account of McEvoy as an abuser, again with similar facts. I bear in mind that, subsequently, Crown Court proceedings based on these specific allegations were dismissed as arising from an abuse of process in the conduct of those criminal proceedings, a point I address later in this judgment.
37. In relation to the evidence of JB, the Defendants make a number of comments. The first is that his case has been dismissed on grounds of limitation and it would therefore be curious if he was thought to be a reliable witness in proceedings on behalf of another claimant. This argument however does not address the basis on which I declined to extend the limitation period in JB's case. I found that any loss of cogency of evidence bore mostly on the issue of system, not on the abuse itself. The other loss of cogency of evidence which was relevant bore on individual causation in that case, and was in any event only one factor in the decision.
38. The Defendants also rely on the fact that JB's account of the blackmail incident with Bolger is inconsistent in some of its detail with the contemporaneous documentation and Bolger's own account, the specific point being whether JB was himself being abused. There is no mention of that allegation in his handwritten account at the time. In evidence JB insisted that he had mentioned abuse to the headmaster in one short reference:

"It happened to me too."

The Defendants say directly that JB is a liar and this suggestion is unproved.

39. In my view, JB's evidence is not undermined by the decision on limitation in his case, and is of some value in the case of JA.
40. Francis Spriggs made a witness statement to police officers on 7 May 1996. In the course of that statement he denied that he was ever sexually abused in St Aidan's. He made a subsequent witness statement in these proceedings in May 2005. Mr Spriggs is a Claimant. He gave evidence before me and I found him wholly unconvincing. His account is replete with exaggerated incident, such as being knocked unconscious and then being revived by the 'ladies in the sewing room'. He has an extensive and serious criminal record, including a number of occasions where he pleaded not guilty to offences which he committed. I place no reliance on his evidence whatsoever.
41. Francis McLoughlin first made a witness statement to police in January 1998. This included no allegation that he himself had been abused and he is not a claimant. However the witness statement to the police gave a description of behaviour by McEvoy capable of the inference of grooming behaviour. He made no complaint of his own treatment. Mr McLoughlin gave evidence before me and I found him a convincing and careful witness. Mr McLoughlin was careful to say that he was not so much working from what he was told at the time, but from a clear memory of what he had seen, as he put it "a lot of touchy-feely and unhealthy relationships between adults and children". In relation to Mr McEvoy he gave an example of this, seeing McEvoy "a grown man walking around a yard with his arm around a ten year old and giving him cigarettes." Mr McLoughlin was careful to say he saw no abuse directly, but he did observe that:

"It just wasn't natural the way things were going on. McEvoy was doing a lot of sleepovers. When he was in the dormitory, boys would go to the toilet and should have been there for a couple of minutes but didn't come back for twenty minutes or so."

He himself had seen that. I found Mr McLoughlin an impressive witness.

42. The final witness relied on by this Claimant is James Powell, not himself a Claimant in these proceedings, who gives a picture corroborating widespread sexual abuse amongst the boys in St Aidan's and from a number of the staff. Mr Powell does not suggest that he himself was sexually abused by any member of staff, although he describes behaviour which could be characterised as grooming and he describes considerable physical abuse. Beyond that general picture, there is little in this evidence that bears on JA himself.

The McEvoy Acquittal 2001

43. As I have previously indicated, McEvoy was the subject of Crown Court proceedings in 2001. In January of that year, His Honour Judge Hale dismissed counts in relation to JB, McQuinn and Gardener. A transcript of his ruling is available. The nub of the application was that, although JB denied it, all three of these witnesses, were likely to have been interviewed by police in 1972 but police records had been destroyed or disposed of. Counsel for McEvoy submitted successfully that he was unable fairly to cross-examine these witnesses because police records relevant to what they had said at the time had been destroyed and this constituted an abuse of process. The Judge declined to stay allegations in relation to the Claimant JA (or indeed in relation to Cranny). Those matters proceeded to be tried later in 2001 and McEvoy was acquitted. There is no transcript available of this trial or any part of it. I note that JB said then, and says now, that he was never interviewed by the police in 1972.

Collusion

44. When asked directly by me in the course of the hearing, the Defendants made it clear that they advance no positive case of collusion in regard to these allegations, in respect of these three Claimants or any of the witnesses. Police officers had visited the homes of the individuals who had been in St Aidan's, but there was nothing to suggest collusion between those who made police statements, before the first visit by officers. Those who have made allegations against McEvoy did not all know each other, nor indeed did they all overlap in their time at St Aidan's. Compensation may of course be a motivation for invention or exaggeration for those who are claimants, a point I bear in mind.

The Defence case: Factual Evidence

45. The Defendants have been able to call no factual evidence bearing specifically on the case of JA. McEvoy is dead. He died in March 2007, quite a number of years after JA's case (and a number of others where abuse is alleged against him) was begun. No witness statement from Mr McEvoy has been served.
46. It appears McEvoy did give evidence in his own defence in the criminal trial. Despite that, no witness statement has been served in these proceedings. It is clear in relation to the alleged abusers Messrs Barber and Hepburn, as I set out later in this judgment, that they were not approached to give evidence in the case until 2009. In the case of McEvoy, the history can be inferred from the evidence of Mrs Barbara Taylor, the senior official of the Defendants with responsibility for the support of these proceedings. In her third witness statement, made in December 2008, she describes how the Defendants' solicitors identified McEvoy's criminal defence solicitors in November 2008, and learned from them later that month that McEvoy had died in March the previous year. In the absence of any other evidence, the inference is clear that no attempt had been made to get evidence from McEvoy before that time, in relation to this case which had been issued in May 1999.
47. The Defendants have throughout been clear that, until the twin "changes" in the law, concerning vicarious liability for sex abuse by employees and the availability of discretion under the Limitation Act in such cases, their focus in defending all these cases was on showing a proper system of supervision. They accept that the fact of sexual abuse was always a prior question, and thus such evidence as might have come from McEvoy would always have been relevant. The Defendants suggest the point is therefore one of resources and priority. This point must be considered in the context of the considerable number of cases where allegations are made against McEvoy, in each of which the fact of abuse has always been a prior question to the adequacy of the system of supervision. The Claimants argue that this approach was a conscious decision, in effect a tactical decision, of which the Defendants cannot now complain. The fact remains that, because of such decisions, no witness statement from McEvoy can have been drafted.
48. There is no other factual evidence adduced by the Defendants, save for the "generic statement" of Mrs Esther Woods. Mrs Woods spent two periods of time at St Aidan's. From 1968 to 1971 she served as Assistant Matron, whilst Mr Connell was headmaster, and his wife was Matron. After a period as a matron in a home for the elderly, Mrs Woods returned to St Aidan's in 1973 as Matron on the retirement of Mrs Connell, and worked there until retirement in 1981, by which time Mr Hoskin had been headmaster for some 6 years or so. Mrs Woods retired at 60, and is thus now a lady in her late 80s. Her statement was received in evidence and she did not give oral evidence.
49. The effect of Mrs Woods's evidence can be summarised as follows. She feels that Mr Connell was a firm headmaster, but that Mr Hoskin was less so, although she is clear that he was benign in the way he treated the boys. Mrs Woods was never conscious of corporal punishment being used in St Aidan's and certainly does not accept that it was used to excess, something which she believes she would have detected. The boys were often troubled and could sometimes be very difficult. They were medically examined when they arrived and after return following any absconding, but she was never present at such examinations, which were conducted by a GP, accompanied by the relevant Housemaster. However she never heard any suggestions of abuse or injury arising from any such examination, and part of her duties did involve "writing up the notes and dealing with any follow-up after any examination".
50. Mrs Woods was responsible for the boys' bedding, which was sent to a convent for laundry. She never saw any blood or other evidence of bad beatings on the laundry, and nothing of the kind was reported to her by the sisters from the laundry, which she would have expected if there was blood on sheets or underwear.
51. Mrs Woods says nothing directly about Mr McEvoy or indeed about any other staff member save for a convicted abuser on the staff of St Aidan's, Colin Dick. She was clearly suspicious of Dick, and sets out a number of points in respect of which she felt his behaviour was inappropriate: these include favouring certain weak boys, spending money on a number of them in ways which seemed unusual, buying and using soap and cream on one of these boys who had a skin condition (something which "would have been my responsibility to treat"), letting one boy keep a ferret in the unit, giving items to boys which she felt were more "appropriate for little girls than boys".
52. Mrs Woods stated that she did have concerns about Colin Dick but she never discussed them with other members of staff, apart from raising the purchase of duvets and other items for the rooms of boys with Mr Hoskin, a concern the latter rejected. Mrs Woods states that this approach was because "I thought it was my role to be quite distant from the care staff as I was responsible for the support staff and I did not think it was appropriate for me to become involved in any gossip that might have been going on." Her statement does not elaborate as to what she means by such "gossip". She is now aware of the allegations against Colin Dick and of the fact of his convictions, and she does "believe him to be guilty". Despite Mr Hoskins' conviction, she does not believe him to have been guilty, and she rejects what a lot of the boys have said and "the allegations made generally".
53. I have touched on some of the evidence of Mrs Taylor. Her successive statements outline the steps taken by her and her predecessor Mr Graham, in addressing these cases on behalf of the Defendants. She describes how St Aidan's closed in 1982 (and St Vincent's in 1989), and confirms that much of the relevant documentation, such as log books, night log books, senior officers' log books, accident books, surgery books, staff lists and files, children's files and training records, is missing, despite the efforts made to locate it. Her conclusion is that the documentation relating to St Aidan's was likely destroyed when the institution closed, although "individual child care files would have been returned to local authorities if they so requested." A good deal more documentation relating to St Vincent's was retained, although little such documentation has been relied on in these proceedings.
54. Mrs Taylor also sets out how many of the former staff members are either deceased, or are too old and frail to assist, or have been unwilling to assist. Her third witness statement, of December 2008, appends lists of staff members at St Aidan's and St Vincent's, complied either by Mr Graham or by herself. This statement also details some of the efforts that have been made, either by Mr Graham and Mrs Taylor, or by solicitors, to seek to trace staff members listed, analysed by reference to individual claimant. There is no such exercise in relation to JA, although there is an analysis in relation to JB, which reveals that McEvoy is dead as outlined above, that Colquitt died in 1988, that Paul Bolger is dead and that a man who is probably Major Connell died in 2004.
55. In addition to her witness statements, Mrs Taylor gave evidence in the course of the hearing. She was able to say that any documents which survived to 1994 should be available, since it was in that year the police first intimated to Mr Graham that an investigation was to be mounted. Although the demands of the litigation had been considerable, it was only one of her responsibilities for the Defendants. She has been involved since 1998, and over that period until, the immediate run-up to trial, the demand has ranged from weeks where the cases have involved no claim on her time, to weeks where she has spent "some part of two or three days" on the cases. The Defendants are one of the largest charities in the North-West, with an annual turnover of £23 million, and are currently in control of more than 20 care establishments. Allegations such as these arise in respect of St Aidan's, St Vincent's and one other institution. Though the demands of the preparation may have been real, they have not been overwhelming.
56. Mrs Taylor was unable to explain why some documents had survived, or indeed to explain why those which had been destroyed or disposed of had been distinguished.
57. Mrs Taylor confirmed that she had not sought to contact any witness save on advice from the solicitors. She was not asked to contact any witness before 2005. She had only been asked to contact a few witnesses in all, and there had never been a request to make any general enquiries of others. She was aware from the records which had survived, or from the schedules and lists which had been compiled, that quite a number of employees of both schools had been on the staff for long periods, and would have had considerable information about the individuals at the heart of the claims, about life in the schools, routines, conditions and so forth. There were numbers of such staff still alive, but she could recall no general enquiry of them.

Views of Experts relevant to limitation and liability: JA

58. There is a good deal of common ground between Ms Roberts and Dr Wood. It is agreed that JA had a dysfunctional childhood and was particularly disadvantaged early in life. It is agreed that his experiences in care "if credited by the Court and particularly at St Aidan's" exacerbated his pre-existing difficulties. It is agreed that JA has:

"done rather better in his adult life than might have been predicted given the totality of his life experiences and his genetic inheritance."

59. The experts agree that JA does not meet any criteria for personality disorder or mental illness, but probably has some personality difficulties which have impacted on his functioning and inter personal relationships. It is agreed that JA probably demonstrated a conduct disorder during adolescence however he has matured over the years. The experts agree that JA's adult difficulties "can be described as relating to his difficulty in trusting others and his need to control his internal and external world". He has nightmares and irritability and has achieved a rigidity of functioning which impacts on his capacity for intimate relationships. In layman's language, he finds it very hard to trust people. Both experts agree that he has continued to improve through adult life and indeed has improved since originally assessed by Ms Roberts in 1999.
60. Both experts agreed that the Claimant has been:

"very reluctant to make a claim although he had knowledge that he had been harmed from the time of the alleged abuse onwards. However we agree that survivors of sexual abuse often account for their reluctance to complain in terms of the inherent shame in being sexually abused. This is particularly true for men and for those who find it hard to trust. This dynamic is well described in the research literature in this area."

61. The experts also agree that whatever the reason for delay in making a complaint, it:

"has caused considerable problems for the experts because of the deterioration in the cogency of the evidence available as a result of the passage of time".

However, when this last agreement came to be examined in evidence with the experts, Ms Roberts made a distinction. In her view the deterioration and the cogency of evidence really affected the narrative evidence of what had taken place. So far as the long term effects of sexual abuse were concerned, the passage of time has made it easier rather than more difficult to trace in the given individual how he has progressed. Dr Wood continued to view the passage of time as making things more difficult on all of the aspects of expert judgment in the case.

Limitation: Knowledge

62. As with the other two cases, knowledge is conceded in the case of JA.

Limitation: Section 33 Limitation Act 1980

63. In this case, and the others addressed later in this judgment, I will follow the approach to the exercise of discretion under the Act set out fully by me in AB and Others v The Nugent Care Society [2009] EWHC 481 (QB), and, save for one point not relevant here, approved in that case by the Court of Appeal in AB and Others v Nugent Care Society [2009] EWCA Civ 827. I set out no more general analysis of the law here.
64. I have set out the crucial dates above. It is common ground that it was 22 years from the end of the primary limitation period to the issue of proceedings. The delay by the Claimant was principally because of a strong desire to suppress or avoid this whole aspect of his early life, a factor accepted by both experts as applying strongly here. I am confident that he was reluctant to make a claim, and initiated the process only after the police investigation, and some additional persuasion from his partner. In my view this is a classic case where the nature and impact of the abuse has itself contributed to the delay. To adapt slightly the language of Lord Hoffmann in A v Hoare and Others [2008] UKHL 6, at paragraph 49, this is a case where for practical purposes, the Claimant was disabled from commencing proceedings by the psychological consequences of the abuse he suffered.
65. Undoubtedly the evidence bearing on the abuse has been rendered, to some degree at least, less cogent by the delay before issue. However, the principal loss of evidence here was that of the alleged abuser McEvoy. Other witnesses' evidence would be at best peripheral on the central issue of the fact of abuse. Mr McEvoy could have given a full account of events for a number of years after the issue of proceedings. Certainly the delay before issue did not cause his evidence to be unavailable, at least in statement form. This arose directly from the decision by the Defendants not to seek evidence from him.
66. It seems to me appropriate to consider this decision directly, since it is relevant to a number of claims in this group in addition to that of JA. The decision seems to me inevitably to have been a matter of tactics. As will be clear from the evidence I have reviewed above, McEvoy was the alleged abuser not merely in the case of JA but in quite a number of other cases within this group. I quite understand that while the system of supervision in this school was understood to be the central issue, the emphasis of effort was inevitably there. However, where the fact of abuse was a prior and potentially dispositive issue in each case, and where a considerable number of claims turned on accusations against a few individuals, including McEvoy, the resource implications of proofing those few individuals were very limited, and possibly fairly described as trivial. It is not even the case that statements were taken, but then a decision was taken not to call, in this instance, McEvoy: no statement was sought. I fully accept that such a tactical decision may have been a fair one to take, and I imply no criticism of those who took it. However, should then the absence of this evidence weigh against a Claimant, who had no control over the matter, in the grant of discretion?
67. I bear in mind also that, in the case brought by JPM to which I turn later in this judgment, a similar tactical decision had clearly been taken, and was then reversed, with the surviving alleged abusers, Messrs Barber and Hepburn, being proofed and called. I infer that the same change of tactic would probably have arisen, and an approach would probably have been made to Mr McEvoy, if he had lived long enough for the immediate run-up to the trial. I do not of course know that he would have agreed to co-operate, even if made subject to a subpoena like Messrs Barber and Hepburn. Nor do I know that the Defendants would have sought to call him, even if a statement had been taken and he was alive at the trial date.
68. How does this consideration sound legally? The Claimant argues that this is to be regarded as relevant "conduct" on the part of the Defendant, for the purposes of S.33(3)(c) of the Limitation Act 1980. I have reached no final view on this. It seems to me that the natural meaning of the language of that paragraph implies something done by a Defendant which impedes the carriage of a claim by a Claimant, rather than a tactical decision which potentially limits the development of a defence. Whether or not these facts can properly be regarded as falling within this paragraph, it seems to me that they may be relevant to the question arising under S.33(3)(b), and are certainly relevant to the operation of the discretion generally, which is, as I remind myself, unfettered.
69. In the end, I approach this factor as one to be weighed in each individual case. In the case of McEvoy, he faced a host of allegations from different claimants, his evidence was very obviously relevant across a sizeable number of cases, and his evidence would not be adduced unless it was a denial of each allegation. He would not be in a position to deny the opportunity for these assaults, and he would face at least some evidence from witnesses who were not claimants and who did not claim to be his victims. I am not persuaded that the evidence here was rendered less cogent to any great degree by the absence of McEvoy.
70. As the evidence of Mrs Woods demonstrates, the evidence of other staff members, in the context of sex abuse cases, may bring surprisingly little help to the defence case. Her evidence has ambiguities contained within it, but even setting that aside, such abuse is necessarily hidden away from those who would be thought by the perpetrators to disapprove. In any event, in the case of Mrs Woods, she was suspicious of a given member of staff, but essentially held back from intervention.
71. I conclude there is little significant loss of cogency in the evidence by reason of the delay.
72. There was no relevant conduct on the part of the Defendants here, in the sense of any improper conduct causing delay to the carriage of the case by the Plaintiff. There has been excessive delay since these claims were issued for which both parties bear responsibility.
73. There is no relevant disability within the meaning of S33(3)(d).
74. I have already dealt with the reasons for delay on the part of the Claimant instituting proceedings. There was no significant delay once this Claimant in fact realised he could take legal proceedings, even though he remained reluctant to do so.
75. No delay arose from seeking legal or medical advice or its content, which is relied on by the Defendants.
76. Is this claim proportionate? It seems to me that it is. Both sides' experts agree that, if proved, the abuse made a significant contribution to the Claimant's ongoing problems, albeit that they differ as to the extent of that. On the Claimant's account, there were at least three episodes of abuse, and although they were not at the worst end of the scale, nor were they trivial, particularly the last. If proved in a criminal court, they would lead to a significant custodial sentence.
77. For all these reasons, I extend the limitation period permitting this action to proceed.

Liability, causation and quantum: JA

78. I have already sufficiently analysed the Claimant's own evidence bearing on liability and causation. I found him a good witness, and with one exception, the tenor of the evidence was to support his credibility. The exception is the way matters were described to the experts, which I have analysed above. In my judgment, the likely confusion here was that of Ms Roberts. The fact that the Claimant corrected the error but did so without being over dogmatic as who had caused the mistake, rather supports his credibility than otherwise. Balancing these factors together, I accept this Claimant's account, at least as to the central events. I accept there were at least three episodes of sexual abuse at the hands of McEvoy. In part this conclusion rests on the Claimant himself, given his history, a high degree of consistency of account, viewed in context, and his demeanour. In part it rests on the fact that similar abuse by McEvoy is attested by a significant number of others, where no collusion is alleged. The evidence of Mr McLoughlin is particularly helpful.
79. The experts addressed the crucial problem of causation in their discussion. I have observed above that neither expert considers JA has currently any identifiable mental illness or personality disorder, whether attributable to the sex abuse or otherwise. Indeed it is clear neither considers this has been the case in the past. Their attribution of problems relate to difficulties which have distressed and troubled JA but left him without psychological abnormality. They did agree that "[JA]'s problems arise out of his personality structure" but expressed themselves as disagreeing in relation to the broad proportional contributions to those difficulties flowing from the various problems that the Claimant has faced. In oral evidence both of them emphasised the crudeness or approximate nature of any proportionate estimate. Dr Wood estimated a 70/30 attribution of harm, the larger proportion coming from the Claimant's pre-care experiences in his own family and home and 30% flowing from all of the adverse experiences whilst the Claimant was in care. Adopting the same division or delineation of causes, Ms Roberts estimated a 50/50 split.
80. Dr Wood emphasises the likely contribution of genetic inheritance and early childhood environment. In support of this view he made considerable reference to the literature which he summarised pointing to genetic influence in the inheritance of alcoholism and the capacity to inherit criminal behaviour. When these propositions were tested, Dr Wood was robust in maintaining that the evidence in relation to inherited tendency to alcoholism was strong; that it reasonably well discriminated between genetic inheritance as opposed to the social environment during childhood, much of the literature concentrating on twin studies where the twins were separated early, and on children removed early from the alcoholic family environment. He accepted readily that despite the alcoholism in his background, JA had not ever suffered from abuse of alcohol or indeed of other substances. However he made two points in response. Firstly, the literature concerning alcoholism does demonstrate a pattern of jumping the generations: the children of alcoholics often avoid alcoholic dependency because of their very strong reaction to their parents' dependency and consequent behaviour; however the grandchildren of alcoholics revert to a pattern of high dependency. This pre-supposes a genetic inheritance only partly moderated by strong conscious effort. Secondly, he made it clear that his reliance on the literature was not so much to show that alcoholism could be genetically passed on, as to emphasise that genetic inheritance was importance in all fields.
81. In relation to the literature concerned with the inheritance of criminal behaviour, Dr Wood conceded that this body of work discriminated to a lesser extent between genetic inheritance and "social inheritance or the influence of upbringing and background aggregated". In oral evidence he added the example of the very highly raised incidence of schizophrenia in those whose parents or immediate family have demonstrated schizophrenia.
82. Ms Roberts emphasised the effects of events as being more important than the analysis of Dr Wood would imply. She deployed the example of the Claimant himself. Due no doubt to his coping mechanisms, JA has not succumbed to either long term criminal behaviour or to alcoholism. If I understood Ms Roberts properly, her point here was two-fold. Firstly, to counter the extent to which Dr Wood relies upon the importance of genetic inheritance; secondly, to emphasise that it must be of lower importance in the case of JA.
83. There can be no doubt that these are extremely difficult waters. The debate as to the proper degree of emphasis to place on genetic inheritance, the effect of early childhood and personality development in the childhood environment, the contribution of rather later adverse experiences of an extreme kind, undergone whilst yet in early life, are questions which can never be solved in a case such as this. In my judgment, one is on surer ground in concluding that all of these components may have a major effect; that the effect may vary greatly from individual to individual and that it is difficult to draw any precise conclusions from the scientific literature.
84. In the end, this is a judgment which has to be taken with the individual claimant in mind. Without descending to a crude arithmetical model, it seems to me highly probable that the adverse experiences suffered by JA were cumulative in their effect. They are not alternative causes. Despite all of them, he has done relatively well. One must make allowance for the fact that he is an intelligent man conscious of what is at stake in this litigation. It would be highly surprising if more than ten years of litigation had not served to some degree to bring the sex abuse by Mr McEvoy to the fore in the Claimant's mind, as an important part of what happened to him. At the same time, he did not volunteer any move towards complaint to the police or legal action until very many years after he had become an adult, and long after he had ceased to be involved in criminal activity, the latter being a factor which might make him reticent of contact to the police and/or lawyers. He did not appear to me to seek to over-emphasise or dramatise the consequences of abuse.
85. The consensus between the experts is that by an effort of will he has suppressed the memories of what took place and has in effect "put them in a box". I do not find him to be an exaggerator. Yet he gives virtually equal importance to the really serious physical and sexual abuse coming from peers whilst in St Aidan's as to the abuse, admittedly less serious in its formal content, but coming from a teacher and an authority figure. In my view, this abuse is likely to have reinforced his feeling of being lost and powerless and shut off any possibility of appeal to authority in the face of the more serious abuse coming from his peers. Moreover, this all arrived very early in his time at St Aidan's and within a matter of a few weeks of his removal from his dysfunctional family. What might have been a new start became nightmarish. Had he been an adequately "looked after" child once he reached St Aidan's, it seems sensible to think that he was young enough to improve more rapidly.
86. In reality, JA suffers from the consequences of the mechanisms he adopted to suppress and cope with the accumulated trauma of his young life. His emotional remoteness, his anger, his lack of trust in relationships are as much a consequence of how he dealt with what happened to him as of those experiences themselves. This does not sit easily with an inherited tendency but sits much more easily with the distortion of the personality as a consequence of rather extreme coping mechanisms. Although falling short of a formal psychiatric injury, the effects have been marked.

Damages – Legal Approach

87. As I have observed, it is common ground that JA has sustained no identifiable psychiatric illness or disorder as a consequence of the abuse. JA has at all times been within the range of psychological normality. Yet those representing the Claimant have invited me to award damages for a psychological injury, as opposed to (or in addition to) damages at large for assault. If the consequence of an assault is a physical injury, or an identifiable psychiatric disorder, then the problem does not arise: damages for the physical or psychiatric injury can of course be awarded. However here the argument is, if knowledge of the fact that you have been raped is enough to constitute 'knowledge' under the Limitation Act 1980, which of course must be knowledge not merely of an injury but knowledge "that the injury in question was significant", see S14(1)(a), then should there not be a discrete award for the adverse psychological consequences of such a significant injury, even where those consequences fall short of any psychiatric diagnosis?
88. The law has always allowed for a rather different approach to compensating assault claims, for a number of reasons, some of them historical. A broad approach has proved enduring. No doubt where the assault causes an identifiable psychiatric breakdown, a discrete award may be appropriate, as it would be in relation to damages for physical injury caused by assault; at least it is appropriate to begin by treating compensation for the identifiable injury as a significant element in the award.
89. In the current (18^th) edition of McGregor on Damages, at paragraph 37-001, the Editors introduce the topic by saying: "the tort of assault affords protection from the insult which may arise from interference with the person. Thus a further important head of damage [beyond compensation for physical injury] is the injury to feelings, ie the indignity, mental suffering, disgrace and humiliation that may be caused….While damages for the injury to feelings may be given without their being classified as aggravated damages, it is usual to find, in such authorities as there are, that the court does make its award one of aggravated damages". An almost identical passage from the 17^th Edition was quoted with approval by the Court of Appeal at paragraph 108 of their judgment in the appeal relating to this group of cases.
90. A slightly different emphasis was given to this topic by the Court of Appeal in Richardson v Howie [2005] PIQR Q3 CA where Thomas LJ at para 23 said:

"In cases of assault…it is appropriate to compensate for injury to feelings including indignity, mental suffering, humiliation or distress that might be caused…as well as anger or indignation arising from the circumstances of the attack. It is also now clearly accepted that aggravated damages are in essence compensatory in cases of assault. Therefore we consider that a court should not characterise the award of [such] damages…as aggravated damages: a court should bring that element of compensatory damages for injured feelings into account as part of the general damages awarded."

91. The Court of Appeal in Hugh Martins v Mohammed Choudhary [2007] EWCA Civ 1379 addressed the proper approach to this problem, firstly in a passage from the judgment of Lady Justice Smith:

"18 It is true that one division of this Court did so recommend in the context of a case of modest damages for assault. In Vento [Vento v Chief Constable of West Yorkshire (No2) [2003] IRLR 102, however, another division of this Court approved the making of separate awards for psychiatric harm, injury to feelings and aggravated damages in the context of sex discrimination. I would venture to suggest that there should be no hard and fast rule about whether separate awards should be made. It will all depend on the facts of the individual case. If, for example, as is sometimes the case, the psychiatric harm is very modest and to all intents and purposes merges with the injury to feelings, it will plainly be more convenient to make one award covering both aspects. If, as here, where the psychiatric injury is not insubstantial, it is positively helpful to the parties (and to this Court) if the judge separates the award for psychiatric injury from that for injury to feelings. This leads to a better understanding of the judge's thought processes. However, I do accept that there is a risk of double recovery by overlap if two awards are made and the judge must take care to avoid that.

19 In the present case, I think the judge was justified in making separate awards as she did. Moreover, she warned herself to avoid double recovery by overlap and, save that it might be said that there must have been double recovery because the awards are both too high, I cannot see any specific basis on which to conclude that there was. I will come to the size of the awards in due course.

20 As I have already observed, the judge did not make separate awards for injury to feelings and aggravated damages. No ground of appeal arises from that and I wish to say that I think she was right not to do so. It seems to me that, in the context of a case of this kind (and for that matter in a discrimination case) where damages fall to be awarded for injury to feelings, the quantum of damage should reflect the aggravating features of the defendant's conduct as they have affected the claimant. As 'aggravated damages' are supposed to be compensatory, that seems to me to be the most satisfactory way of dealing with them. If a separate award of 'aggravated damages' is made, it looks like a punishment; in other words it looks like exemplary damages. I appreciate that differing views have been expressed on this issue in this Court. I have expressed my view and, in the context of this appeal, it is obiter."

92. Later in the same case, Lord Clarke MR said, at paragraph 28:

"…like Smith LJ, I recognise that it may well be appropriate, in a case where there is psychiatric injury, separately to identify the figure to be included to compensate for such injury, as was done in Vento v Chief Constable of West Yorkshire Police (No 3), to which Smith LJ has also referred. All thus depends upon the circumstances but, absent identifiable psychiatric injury there is much to be said for the approach in Richardson v Howie. Whichever course is adopted, it is of course important to avoid double counting, as indeed the judge did in the present case."

It is worth noting also the guidance of the Court of Appeal in Vento, where Mummery LJ suggested that damage for distress and injury to feelings should be kept at a modest level.

93. It seems to me the proper approach is to permit the negative psychological effects of an assault to sound in the general award, alongside such things as the nature of the event, the immediate impact on the assault victim, and so forth. By definition, where no identifiable discrete psychiatric injury arises, we are not dealing with the more serious cases in terms of the consequences of assault, an outcome which will depend on the facts of the assault, the psychological resilience of the victim, the other factors affecting the victim for better or worse, and so forth. Therefore the approach I adopt in a case where no discrete psychiatric disorder is demonstrated, is to consider the adverse psychiatric consequences as part of the picture to be borne in mind when considering the level of damages at large for the assault itself.
94. I bear in mind that there were three acts of abuse, the third of which was worst. I do not intend to segment the award into a discrete amount for each episode, but to look at them in the round. In any event, the shame and distress and the psychological effects are cumulative, not separate. I award damages in the total sum of £10,000.
95. There must be interest on those damages at 2% per annum, and it is agreed interest should run from 1 January 2000, which for the sake of simplicity I calculate as 20%, meaning that I award interest of £2,000.

Conclusions

96. For the reasons set out above, I extend the limitation period to permit the claim to proceed. I find that there were three identifiable episodes of abuse by McEvoy, for which it is admitted the Defendants are vicariously liable. In the absence of any identifiable psychiatric disorder, I decline to make any discrete award for the long-term psychological effects of the abuse, even though these exist. I take those consequences into account in awarding the damages for assault. I award the sum of £10,000 in damages and £2,000 in interest.

Introduction – JPM

97. The case of JPM has had the most complex litigation history of any in this Group. He gave evidence in November 2006 before Mr Justice Holland, when his case was listed one of three for decision by the Judge on both limitation and liability. Following an application by the Defendants, resisted by the Claimant, the Judge decided to limit his findings to limitation. In the course of giving judgment the Judge made extensive findings in relation to this Claimant which are set out at paragraphs 13 – 43 inclusive of the judgment, see: AB and Others –v- Nugent Care Society [2006] EWHC 2986 (QB).
98. In June 2008, the decision of Mr Justice Holland to refuse to extend the discretion in favour of this Claimant was reviewed by the Court of Appeal and the decision on limitation was quashed, the Court ordering the matter to be remitted to Mr Justice Holland for a fresh decision on limitation: see: AB and Others –v- Nugent Care Society [2008] EWCA Civ 795. For reasons explained elsewhere, Sir Christopher Holland was unable to deal with the matter and this case was one of four decisions on limitation given by me on 30 January 2009, see: AB and Others –v- Nugent Care Society [2009] EWHC 481 (QB) at paragraphs 53 – 64. As was necessarily the case following the ruling of the Court of Appeal in 2008, I adopted the facts as set out by Mr Justice Holland for the purposes of giving my ruling on limitation. I did not then hear further evidence from this Claimant or indeed any other witness. I extended the limitation period in the Claimant's favour.
99. This Claimant was one of three whose cases were considered again on appeal and cross appeal by the Court of Appeal, who gave judgment in July 2009, see: AB and Others –v- Nugent Care Society and GR and Wirral Metropolitan Borough Council [2009] EWCA Civ 827. The procedural background relevant to JPM was set out between paragraphs 28 and 37 of the judgment and the case of JPM was dealt with between paragraphs 38 and 52.
100. In the course of considering this case, the Court of Appeal concluded that I was wrong to find Mr Justice Holland had found abuse to be proved in the case of JPM and of another claimant. As they put it in paragraph 35 of the judgment of the court:

"As we read those passages, Holland J was simply expressing his conclusions on the basis of the evidence he had heard and read it seems likely that he would have found the abuse proved if the trial had reached its conclusion on the merits, since there is not, as we understand it, any suggestion that there is further factual material which is now available to the Defendant."

101. In a further passage in paragraph 42 dealing with potential prejudice, the Court said:

"Mr Milligan is dead and both Mr Hepburn and Mr Barber are elderly …..those are factors which suggest that the Defendant will suffer some prejudice by the passage of time. However Mr Hepburn and Mr Barber will be able to give evidence. Moreover these factors must be set against both the finding of Holland J that the evidence of abuse given by JPM was cogent, even after all these years, and the finding that he was inhibited from reporting it."

Those factors played their part in the decision by the Court of Appeal to sustain the exercise of discretion on limitation in JPM's favour. The case was therefore remitted to me for trial on liability, causation and quantum.

102. When the matter came before me for hearing, the Defendants sought to call Mr Hepburn and Mr Barber and to cross-examine JPM as to liability. It was common ground that JPM would in fact have to give evidence again before me to deal with causation and evidence relevant to quantum. Miss Coe QC on the Claimant's behalf sought a ruling that further cross-examination of JPM on liability and the introduction of further evidence bearing on liability on witnesses for the Defendant would constitute an abuse of process, given the findings of Mr Justice Holland and the procedural history of this case. In a reasoned ruling which is available in a separate transcript, I rejected Miss Coe's submissions, permitting cross-examination of JPM and permitting Mr Hepburn and Mr Barber to be called. It was by this rather circuitous route that these witnesses came before me.
103. Terence Barber was the woodwork teacher, and then briefly acting second deputy headmaster, at St Aidan's. He was there from 1951 – 1982. James Hepburn was employed as a maintenance worker and gardener at St Aidan's from October 1966 – December 1978. JPM alleges abuse by both.
104. This Claimant was the fourth of nine children and for much of his childhood was the only boy in the family. It seems clear that he was somewhat babied or spoiled by his family. There was a good deal of poverty but he was close to his parents. However he began to truant from the age of eleven or so, and this pattern became so entrenched that his father was sent to prison because of the truancy.
105. From about the age of eleven JPM was before the courts for stealing and truanting and was sent by the juvenile court initially to Menlove Avenue Assessment Centre and then transferred to St Aidan's. He was a notably small boy for his age.
106. In St Aidan's, JPM describes how he was bullied a good deal by the older children both physically and in terms of teasing. Complaint to the teacher produced no action, which left this Claimant feeling vulnerable. He stated that he soon found out there was a good deal of sexual activity going on at St Aidan's, mainly between senior boys and new boys, and mostly in the toilets. The Claimant witnessed this activity soon after arriving. He was frightened to say anything because he would be accused of being a "snitch". One of these boys got into bed with the Claimant one night and told JPM that he was "your bum boy". The Claimant pushed him out of bed.
107. The Claimant described how he was abused by Mr Hepburn in the boiler house. The boiler concerned was run on coke and was "near the builder's yard in front of the sports centre which was then being built." That was where Hepburn first abused him. He was also abused in the potting shed which was "quite an open glass building ……surrounded by trees". The Claimant was also sexually abused by Mr Milligan, which he claimed took place in the greenhouses about once a month. In addition, he was sexually abused by Mr Barber the joiner, "near the compost heap one day, sawing a piece of wood".
108. The first witness statement from this Claimant made in this action is very general in its allegations. JPM has said throughout that he finds it very difficult to describe the abuse in detail or to talk about it at all. It is worth considering the sequence of statements he has made. The first statement was made to the police in October 1998. That statement makes clear that the Claimant was first contacted about a year previously by DC Higgins and he then refused to speak about his experiences at St Aidan's at all. He had never told anyone about the abuse he had suffered.
109. At that stage, according to the October 1998 statement, Mrs M pressed him to say what had happened, and in the end he told her in general terms that he had been abused. The Claimant made the point that has emerged from other stories, to the effect that he had been dealing with the problems of his life reasonably successfully until the police came knocking on his door. This irruption caused his mental state to deteriorate and he began to drink even more than before. After a period of separation, he and his wife reconciled and his wife urged JPM to contact DC Higgins once more "in order to get it all off my chest". There has been no challenge to that sequence of events from the Defendants. It was thus that JPM came to make his first statement to the police.
110. That witness statement deals first with the abuse by Hepburn, Milligan's assistant. Hepburn took him to the boiler house, where he was told to take off his clothes and he did, undressing down to his underpants. Hepburn undid his trousers and took out his penis.

"He began to masturbate himself and then made me do it to him. He was feeling me all over and tried to kiss me. I didn't like it but there was nothing I could do. It ended with him ejaculating. During the next twelve months, until I refused to do what he wanted, this man would take me in the boiler room about once a month…….He would touch my penis and genitals and used to attempt to put his penis inside my anus but he never succeeded. I suppose it was because I was so small. He usually ejaculated over my bottom and back before he penetrated me. He did actually penetrate a little way on three or four occasions."

111. In this statement, JPM describes how the abuse in the potting shed would be without undressing:

"as it wasn't as private as the boiler house. There he would fondle my penis and genitals and perform oral sex on me although I don't ever remember getting an erection. I would have to masturbate him both by hand and orally until he ejaculated."

112. In relation to Milligan, JPM's account is that he used to sexually abuse him in the greenhouses about once a month. This would

"Only include my having to masturbate him to ejaculation and he would fondle my penis and genitals. Milligan never tried to penetrate me like the other man. The abuse by Milligan carried on longer than with the other man because he was bigger and stronger."

113. JPM's statement also describes abuse by Mr Barber the joiner. He describes how Barber took him to the workshop and then:

"Came behind me and ….was rubbing his body against mine and I could feel his erect penis against my body. This was the only occasion he ever did this."

114. The statement concludes as follows:

"Other than the things I have described, I don't think anything else happened to me at St Aidan's. I'm pleased now that I've had the opportunity to get all off my chest. I've been asked if I intend to claim compensation for the abuse I have suffered. To tell you the truth, the thought never entered my head. I have not told this to claim compensation, as I have said before, my life has been ruined, and I want these people to be brought to justice."

JPM made a further statement in January 1999 he told DC Higgins that many of the names of staff whose names he previously could not remember had come back to him, including that of Mr Hepburn, whom he proceeded to describe. The description is not challenged as being accurate of Mr Hepburn. He was asked to explain the position of the relevant boiler house and did so, confirming that the relevant boiler was run on coke.

115. In March 1999, JPM made a Criminal Injuries Compensation Claim. He made no separate statement in relation to this claim but relied on the police statement detailing the abuse. The form confirms that:

"It is too painful and upsetting to repeat the assault upon me and I was informed by the officer that details could be obtained from him direct."

It appears from a witness statement of 2000 that this claim was not properly progressed.

116. Hepburn was arrested on 21 January 1999 and interviewed in connection with various allegations, including allegations made by JPM. He denied all charges. In 2001, Hepburn was tried before the Warrington Crown Court and JPM gave evidence at the trial. No transcript from the trial, or of this evidence, has been produced. At the close of the prosecution case, the Crown indicated to the court that they intended to offer no further evidence against Mr Hepburn and a formal verdict of not guilty was recorded in respect of each charge.
117. As in relation to JA, an issue has arisen in connection with JPM's account of events to Ms Helen Roberts, the Claimant's expert psychologist. In her report dated 1 August 2001 at paragraph 7.3 Ms Roberts stated that JPM had suffered "oral and anal sexual abuse" from Milligan. This is in some conflict with his account of events throughout. The conflict was addressed by him in a witness statement of 1 November 2006. In that statement JPM notes that the description of abuse recorded by Ms Roberts is accurate, with the exception of two points. Firstly Milligan did not commit oral and anal sexual abuse on JPM but masturbation. Secondly, at paragraph 7.4 of her report, Helen Roberts recites that JPM recalled Barber making JPM masturbate him [Barber] JPM corrected this by saying "Barber only rubbed himself against me, as I have described correctly in my police statement".
118. These discrepancies appear to have emerged in the lead up to the trial before Mr Justice Holland. The correcting statement from JPM was made on 1 November 2006. JPM gave evidence before Mr Justice Holland on 8 November 2006, and JPM was cross-examined by Mr Faulks QC on how he came to correct the content of the Roberts report. On the following day Ms Roberts was cross-examined on the same issue and gave evidence that if there was a significant discrepancy, that was likely to be her fault.
119. In the course of evidence before me, Ms Roberts was able to produce the original notes she had made in interview with this Claimant in June 2001. As in the case of JA, the notes are very extensive, but only a very small proportion of them deals with the actual facts of abuse. The relevant part reads as follows:

"Abuse started about 6 [months] after got in there – sexually abused – Hepburn Gardner and Milligan – Gardner – and Barber – joiner. All abused…..

Hepburn – just 3/4 times (others the same)

D(o) n(ot) k(now) what changed with felt under pressure from the police. Sheila saying that it about threatening to leave ….

Milligan: masturbate him. Oral sex and anal sex 3/4 times he would shout a bit but no threat……

Barber – masturbate him – 3/4 times ……..

….Believe one have go and then tell someone else. Greenhouse (Milligan) Barber – workshop boiler house (Milligan). Not aware of them abusing others. Would see staff taking boys to toilet. First time: Milligan followed to toilet in night. Just stopped: think stopped few months before due to leave so wouldn't say anything/forget."

The manuscript note has one later manuscript amendment. Beside the phrase "anal sex oral sex" in relation to Milligan, Ms Roberts wrote an arrow and the word "no". Her evidence is that this was done in the course of the 2006 trial as a correction of her mistake as to the account from JPM.

120. In evidence before me, JPM adopted both statements in the civil proceedings including the correcting statement. He confirmed that the abuse by Hepburn took place in the "main school coke powered boiler." He was adamant as to the abuse by Hepburn. When tasked about the risks of being seen if there was abuse in a greenhouse, he maintained the account, describing how the greenhouse provided much cover particularly in summer. He maintained also the account of abuse by Barber.
121. In dealing with the accounts recited by Helen Roberts he agreed that she had got some detail wrong. He emphasised how difficult he found it to talk to anyone about the abuse but acknowledged he found it easier to talk to her than others. JPM became quite disturbed in the course of giving his evidence at this point and indeed whenever approaching the facts of abuse. My own impression was that this was acute and genuine. He confirmed that he had found answering questions to the police officer extremely difficult and said, in what appeared to me in passing, that what he had told Ms Roberts was correct.
122. JPM confirmed he was currently "50 years old and still carrying on like an idiot", shoplifting and drinking at the weekends. He wanted to go for counselling and did suggest he was prepared to talk to a professional person, even though he finds it difficult talking to a man about abuse. He confirmed also that he has had some very difficult events in the course of his life, including some unpleasant and dangerous fights. One fight led to him being stabbed and admitted to the Intensive Care Unit. He has also had a very severe car crash with a similar outcome.
123. JPM's wife gave evidence before me. She can of course not give any evidence in direct corroboration (or contradiction) of the abuse. However, she confirmed the difficulties of her husband's life and their life together, confirmed alcohol abuse, recent shoplifting and confirmed his extreme difficulty in speaking of the abuse. She said that "in the course of therapy he would be very afraid of having to talk about the abuse" but "I think he knows now that he just does need to talk about it".
124. The Claimant relies on a number of supporting witnesses' evidence. James Germaine (formerly Davies) was in St Aidan's from 1966 – 1969. He died in 2007. From the papers disclosed it is clear that he made a witness statement to the police in December 1997 disclosing sexual abuse by members of staff but as he subsequently said in a further witness statement to the police of 8 April 1998:

"I was embarrassed at the time and did not want to admit that I had ever been actually buggered."

That further suggestion was made in the 1998 statement. One of those whom he alleged buggered him was Hepburn, identified by the nickname "flapper". The allegation is similar to that of JPM. Further consistent detail is given in witness statements made in this litigation before Mr Germaine's death.

125. Michael Ryan was born in 1955 and died at the age of 52 in February 2008 of cirrhosis and chronic alcoholism. He was in St Aidan's between 1967 and 1969. His allegations include an allegation against Hepburn of being abused in an old barn following a journey on a tractor. This matter was put to Hepburn in cross-examination in the course of which he rejected any such behaviour. However, Mr Hepburn did confirm that there was an old barn to which boys were taken for agricultural training and work.
126. I have dealt earlier in this judgment with the evidence of Francis Spriggs whose evidence is relied upon by this Claimant as well as by JA. I cannot rely on any evidence from this witness.
127. JPM relies upon the statement from James Powell, whose evidence I have dealt with in relation to JA. Although this evidence is helpful background, there is little specific to JPM.
128. Finally, JPM relies on the evidence in a statement from Paul Horn, who alleges abuse by Milligan, and is himself a claimant. His first witness statement to the police was made on 13 March 1997, and alleged abuse by Milligan in a potting shed or tool shed. The abuse took the form of forced masturbation by and of the Claimant, allied to threats of physical assault if Horn did not comply. Mr Horn told the police the abuse was regular, taking place approximately weekly during his year or so in St Aidan's. When later discussing this with a psychologist Dr Havers, Mr Horn estimated the abuse had taken place approximately six times, a fact he explains in his witness statement by saying his wife was present at the interview, and he was embarrassed and wished to minimise the extent of the abuse. I also note that Dr Havers concluded his account was "muddled and unclear at times" but was never found in conflict with information from other sources. Mr Horn's statement makes it clear that he has had severe difficulties in his later life, including the loss of all four of his own children taken into care, and mental health problems. In the absence of hearing from Mr Horn, and examining fully the available material against which his evidence may be measured, I do not feel able to place any heavy reliance on his statement. I do note that here is another claimant who alleged he had been abused by Milligan at the relevant period, in circumstances where no collusion is alleged.
129. The last point is of importance overall. In relation to this Claimant also, the Defendants do not make suggestions of collusion between JPM and any of the lay witnesses who are advanced as supporting his case. The Claimant submits that the content of the supporting witnesses' statements is sufficiently supportive to be significant but has the kind of variety of emphasis and content which does not suggest collusion. In any event, they submit that collusion is not a likely feature of sexual abuse claims. As a result the possibility should be dismissed.
130. In the absence of collusion, much of this evidence must in varying degrees be regarded as providing support for JPM's account.

Expert Evidence Bearing on JPM's Credibility

131. Dr Wood for the Defendant found on testing JPM that there were responses which he interpreted as meaning JPM was an unreliable informant. He applied the Trauma Symptoms Inventory (TSI) and the Minnesota Multiphasic Personality Inventory [MMPI-2]. Dr Wood said that the TSI results were not enough to determine conscious exaggeration but the MMPI results were at the top end of the score and tend to suggest "faking bad" which was "more likely than not conscious exaggeration". Dr Wood agrees that there might be all sorts of reasons why that might be, but he could exclude random responding. In cross-examination, Dr Wood confirmed that when he said that JPM was unreliable he was not saying anything about motive. He agreed that it is "relatively easy to over-endorse" when completing the test. In the course of his evidence, Dr Wood was taken through a detailed technical examination of his use of these two tests. It is not necessary for me to reproduce that. The sum of Dr Wood's evidence on this was that the testing suggested over- reporting, was consistent with exaggeration but could not be regarded as anything like conclusive on this point.
132. Ms Roberts also had some results which were atypical. As she reported in the course of her written report, there were responses which could not be properly ascribed to any post traumatic condition, including such things as paralysis, numbness in fingers and hearing voices. However, she recorded JPM (as in fact did Dr Wood) as being distressed and as highly resistant to discussion of the abuse itself. She preferred to explain the atypical responses on testing as a function of JPM's distress during the process. The result was invalid, but in her view more likely to show how distressed he was, than support the case that he was a deliberately unreliable witness. She added the point that JPM's alcohol abuse and other medical problems might easily give rise to some of these signs and symptoms, even though they could not be appropriately associated with the sexual abuse and its psychological sequelae.
133. In her evidence to me, Ms Roberts was also firm that JPM's correction of her original report presented a positive sign as to his credibility. She suggests that if he was an exaggerator he would have been most unlikely to make such corrections.

Defendant's factual evidence

134. The case of JPM is unique amongst these three cases in that I was able to hear directly evidence from two of the alleged abusers. Mr Barber was born in 1923. He has been married for 63 years and has no convictions of any kind. He worked at St Aidan's from 1951 – 1982. After that he went to work in youth training schemes for the Ford Motor Company.
135. Mr Barber has no memory of JPM:

"He was not on my department he would not have close connections with me. My department was different from horticulture."

136. Mr Barber was asked about physical assaults in St Aidan's and said that he had witnessed none, not even minor. The nub of Mr Barber's account was denial. He rejected the suggestion that any episode of sexual or physical abuse had happened at his hands. In relation to a member of staff called Hoskin, who was convicted of abuse:

"I had no idea that anything was going on at all. I was convinced he was wrongly accused. Subsequently I was not too sure."

137. He never saw anyone being even "clipped around the ear" although of course by definition "some of the boys were difficult". He would never send a group of boys to punish or beat another boy. The only time he would have sent a group of boys after another was if a pupil was absconding. Mr Barber said that he was never aware of inappropriate sex going on, even between the boys. He describes himself as naive. "The sexual connotations of life passed me by, I didn't know what it was all about". There was only one occasion when he recalled a boy sexually abusing another. Whilst that was really a matter for the police, the Monsignor at the time came to the school and instructed the headmaster to give the boy the cane.
138. Mr Barber was questioned about abuse by other staff members and said that he was not sure about Hoskin. He did give evidence on Hoskin's behalf at the criminal trial because he "couldn't comprehend the man was guilty". In relation to the teacher called Colin Dick "on reflection he might have been misinformed". Mr Barber had heard that McEvoy was accused of sex abuse, and of this he said "he may have been suspended. I can't recall the exact reasons for suspending him."
139. A good deal of the questioning of Mr Barber concerned the general circumstances and description of the premises and people. Little or nothing arose from this. The one point of some relevance was that Mr Barber confirmed that the main building boiler ran on coke, but said that one in the horticulture department also ran on coke. They were altered over time. This had the effect of blunting any attack on JPM's evidence concerning the fuel of boilers.
140. Mr Barber gave evidence under the compulsion of a witness summons. Despite his advanced age (he was 87) he appeared fully in command of his intellect and was able to recall the circumstances of his time at St Aidan's with clarity and in reasonable detail.
141. Mr Hepburn also gave evidence. Aged 77, he also appeared to be of clear mind and with a good memory of his time at St Aidan's. The essence of his case also was denial of any sexual misbehaviour. He worked at the school from 1966 – 1978 as Milligan's assistant. He confirmed that having been through the trial in relation to allegations of sexual abuse, including those made by JPM, he had not wished to co-operate with Nugent Care thereafter. This was because he felt Nugent Care had not been helpful to him as he faced criminal charges. He was approached to give a statement in this litigation in 2008 and stated at the time he did not want to take part. He too confirmed that he was present giving evidence because of a witness summons.
142. Hepburn confirmed the general circumstances of his employment and of his appearance and description at the time including his use of a moped or motor cycle. There is no discrepancy between his evidence as to the general circumstances or his own description and the evidence given by JPM and other former pupils.
143. Hepburn confirmed that there were two separate boilers and suggested in effect that JPM's evidence must be wrong, because the boiler used for heating the greenhouses was not fuelled by coke and that he (Hepburn) would have nothing to do with the main coke boiler. There was no opportunity for sexual abuse in greenhouses and although the plants in the greenhouses varied at different times of the year they would in effect never provide safe cover for sexual abuse.
144. Mr Hepburn denied involvement in any sexual abuse. His denials were often flat in tone. He said such activities were repugnant to him. In terms of his awareness of sexual abuse in St Aidan's, he said there was no abuse of which he was conscious during all the time he worked there. He was aware that McEvoy had been suspended and knew he was accused of sexual abuse. Towards the end of his time, Hoskin was in charge and although he (Hoskin) was subsequently convicted, Mr Hepburn found it hard to believe that Hoskin actually engaged in sexual abuse. Colin Dick was also convicted something of which he only heard afterwards and was unaware at the time. He now accepted that Colin Dick was guilty but "apart from that I just don't believe it ever happened."
145. I do not intend to comment beyond what is necessary about these two witnesses. I did not find their account compelling, perhaps particularly in the case of Mr Hepburn. In each case, it appeared to me they were keen to put forward a picture of St Aidan's as a much more benign place than seems at all realistic, and of themselves as more naïve (to adopt Mr Barber's word) than is credible.

Conclusions as to Sexual Abuse

146. I find that JPM was sexually abused in St Aidan's. Conclusions at this remove in time are bound to fall short of certainty. Tested by the civil standard of proof, I find it is probable that JPM was abused as he suggests by Milligan, Barber and Hepburn. I accept that he finds the memory of this abuse profoundly distressing and has found the process of describing these events confusing as well as distressing. There may have been some degree of exaggeration or embellishment, but the core allegations here I find to be proved.

Consequences of Sexual Abuse

147. As in the case of JA, Dr Wood and Ms Roberts have significant differences in their approach to the outcome for JPM. Dr Wood is of the view that JPM was "conduct disordered" before going to approved school whereas Ms Roberts is sceptical of this. The experts agree that JPM has had traumatic experiences subsequent to his time in St Aidan's which are likely to have contributed to any PTSD symptoms he may have suffered. The experts agree that "it is possible" that JPM suffered Post Traumatic Stress Disorder as a result of the alleged abuse in care and other stressors in his life. Ms Roberts has the view that PTSD has been an established condition for many years, and that depression and problematic drinking as noted in the medical records are secondary symptoms of the trauma. She emphasises the co-morbidity of depression and alcohol abuse, with PTSD.
148. Dr Wood does not accept there has been PTSD, and is of the view that if this took place it was no more than minor and time-limited. Dr Wood emphasises that in his view, adverse experiences in care will have made a minor contribution to such symptoms as JPM has experienced. In his report he suggests that 70% of the Claimant's difficulties will have been determined by pre-care factors, emphasising in this occasion also genetic inheritance.
149. I pause to comment that I find Dr Wood's reasoning hard to accept, at least as to his emphasis on genetic inheritance. As I have already noted, in the case of JA he emphasised genetic inheritance on the basis that JA had alcoholism within his family and such tendencies could be inherited. That was not fully easy to follow as applying to JA since he himself had never suffered from alcoholism. By contrast, in the case of JPM, there is a history in the patient of severe and continuing alcohol abuse, but no family history of such abuse. Yet Dr Wood lays the same stress on genetics and inherited tendencies.
150. Ms Roberts' view is that in the absence of pre-disposing adverse childhood events such as physical abuse and neglect, or established alcoholism or other difficulties amongst the immediate family, the most likely explanation for adult difficulties is alleged sexual abuse, exacerbated by further negative adult experience. The experts agree that whatever the effects they have not extended to causing any occupational disadvantage.
151. My conclusions are that sexual abuse to JPM whilst in St Aidan's did make some separate contribution towards his later difficulties. I was impressed by the degree of reluctance on the part of JPM to talk about the sexual abuse he underwent. Emerging from all of the evidence, including the evidence of both experts, was the sense of self disgust or self blame associated with memories of sexual abuse. I accept that JPM would have had a difficult life in any event. It seems to me likely that he would have been an offender and that he would have been someone who abused alcohol.
152. I am impressed by the fact that JPM was at least to some degree managing to lead his life up to the time of the original police investigation, which then disrupted the degree of balance he had achieved. His complex life story, periodic alcohol abuse and notable self-blame or self-disgust are material to his continuing difficulties. Following the police investigation, the sex abuse has come to be seen by him as a very major focus: at least to some extent, in plain language, a hook to hang things upon. However, I accept that he has had at least moderate PTSD and probably moderately severe to which the sex abuse has made a material contribution. To that extent I prefer the analysis of Ms Roberts to that of Dr Wood.
153. In reality the injury to feelings and the PTSD seem to me to be very closely bound up with one another. I propose to make separate awards, but I remind myself that I must avoid duplication between the two. The abuse here was significant, repeated and from more than one abuser. It lasted for months at least, although it is not possible to specify the period with any precision including compensation for injury to feelings, I award general damages of £25,000.
154. Since there has been PTSD to which the abuse has significantly contributed, I will award discrete damages for that injury. It seems to me it has only been significant since the police investigations in the late 1990s. I will make some allowance for the considerable troubles which JPM faced anyway, which must to some degree reduce the loss of amenity from the PTSD. I must also be careful not to double compensate for the injury to feelings for which I have already compensated the Claimant and which is in truth hard to distinguish from the distress and anger associated with contracting PTSD: sufferers from that condition very frequently experience such emotions strongly, in connection with those who exposed them to the original trauma.
155. For all those reasons, the discrete award for PTSD will be somewhat lower than might otherwise be suggested by the JSB Guidelines for the Assessment of General Damages in Personal Injury Cases 9^th Edition (2008). For the PTSD here, I award general damages of £12,500.
156. The total of general damages is therefore £37,500. Interest should be paid at 2% per annum since February 2002, which is agreed at 16% and therefore interest is awarded in the sum of £6000.
157. I am not convinced that JPM will go through any extensive psychotherapy, but it is likely he will benefit from (and accept) some counselling or therapy, particularly if delivered by a woman counsellor or therapist. For this claim, I award £2000.
158. The total award is therefore £37,500 general damages, £2000 special damages and £6000 interest.

RM

159. RM was born on 28 September 1955. He is one of four brothers. He had a loving mother to whom he was very close, but a difficult relationship with his father who was violent in the home, when in drink.
160. RM began to get into trouble from an early age. It seems that it was late 1967, when he was just 12, that he was sent to Menlove Avenue Assessment Centre where he stayed for approximately two months before being sent to St Vincent's. He arrived at St Vincent's on 9 February 1968 and remained there until about 8 September 1969. He was then at St Aidan's from 16 October 1969 until 21 November 1971.
161. After leaving St Aidan's, RM re-offended and in 1974 was sent to Borstal Training. He subsequently continued to offend for some years, receiving community service probation and periods of imprisonment. RM's mother died in 1983 and on his own account, and that of his long term partner Jeanette Skelland, this caused him to "go off the deep end". Ms Skelland had to get an injunction to have him removed from the house. He re-offended and was sent to prison, and they were apart for a year. However, because Ms Skelland felt that RM's behaviour was out of character and linked directly to his mother's death she forgave him and took him back. Thereafter he has not re-offended. The couple have two children who are both well established and despite his psychological difficulties, his criminal record, and his limited literacy, RM has for the most part held down employment. That has been reduced in recent years because of a bad back.
162. In common with other claimants in this Group, RM made no complaint about his time in St Vincent's or St Aidan's until police officers came to his door in the late 1990s. In the case of RM, he was first visited by DC Higgins in November 1997 and on 24 November made the first of a series of statements to the police. In this initial statement, he told the police that he had enjoyed his time in St Aidan's, that he had received some physical but no sexual abuse, that he was now aware of investigations into sex abuse but he "never saw anything like this" and was not aware of any rumours except for one member of staff the brickwork teacher, "Olly Colly" Colquitt. In evidence to me, RM stated that he had met DC Higgins two or three times before he gave any statement, refusing at first because this was a police officer, and "he can't be honest". The implication was that he needed to build up trust with the officer before he gave a statement at all. However, despite that, when he gave it, the statement denied sex abuse.
163. In his next police statement dated 23 March 1998, and in every subsequent statement he has made, RM has described the first statement to the police as "a lie". In his most recent statement in this action, he describes how, when DC Higgins first came to the door and called him "Robert" as opposed to "Robbie", he knew that he was going to be asked about abuse and he could not face answering the questions. Moreover, his son came home from school as the officer was in the house, and he became very agitated at the prospect that his son might find out what was in question.
164. The police persisted in their investigation. Although the details are not apparent to me, by the time of the second statement in March 1998, RM had been referred for some form of counselling and began to talk to the police about sex abuse in St Aidan's, although then made no allegations against Lally in relation to St Vincent's.
165. There is a stark dichotomy about RM's change of approach and account of events. Either in the spring of 1998 he was beginning a painful and reluctant process of addressing what had really happened to him, or he had begun a series of calculated and sustained lies. The Defendants suggest it was the second. In common with other claimants, however, it is not suggested that this was done in collusion with anyone else.
166. As I have said in the statement of 23 March 1998, RM described his first statement as "a lie". He said he could not describe all of the incidents he sustained nor did he name any of his sexual abusers. He stated that he had already suffered both physical and sexual abuse at St Vincent's before going to St Aidan's. He suggested there were four members of staff who sexually assaulted him at St Aidan's, going on to describe a teacher who "reminded me of Bamber Gascoigne", describing a further large well-built man with spectacles who had both beaten him and sexually abused him. These two descriptions are clearly subsequently suggested to be of McEvoy and of Mr Wood. The statement goes on to suggest sexual abuse by a member of staff called Hill and by another member of staff who lived in the unit whom RM describes as a "Mr Georgeson", in fact a reference to a member of staff called Jordan. As I set out below, this Claimant subsequently suggested that even in this second witness statement, he was not being fully honest with the police.
167. At the close of the witness statement of March 1998, the Claimant emphasised how the police enquiry had brought all of these memories back to him and that that had been extremely disturbing. He had

"Told my wife that I was abused but not to what extent. I have only told her in the last week or so. I have never told anyone."

168. On 27 March 1998, DC Higgins took RM to the site of St Aidan's in Widnes. This prompted further suggestions of sexual abuse by a teacher who was Irish and was known as Paddy and allegations against Colquitt including masturbation and buggery. On the same day, RM made a statement concerning sexual abuse in St Vincent's, an allegation which had only been made before in the most general terms. In this statement he suggested he had been abused by three members of staff at St Vincent's, "a huge man who was bald on top and swept his hair over the bald spot". This is a reference to a teacher called Woods. In this statement RM said Woods was the first person to ever sexually abuse him. "It became a regular occurrence. The second person to abuse me was the headmaster Mr Lally". The statement goes on to describe how Lally accused him of stealing and of smoking a cigarette, beat him and then put him on a bed, undressed him and then buggered him. "buggery with Lally became a regular occurrence". The third abuser at St Vincent's was a man in charge of the football team who physically but not sexually abused RM. The statement went on to say:

"Due to the length of time that has passed since I was resident in St Vincent's I cannot describe each incident in detail. I do know that the sexual abuse by Lally and teacher was frequent and regular and seemed to happen throughout the whole of the two years or so I spent in the establishment."

169. In July 1998 a Criminal Injuries Compensation Authority claim was made on RM's behalf. The claim was made through the offices of the solicitors acting for all the claimants in this group action, but by a different individual solicitor. RM signed the claim form on 22 July 1998 and it was supported by a witness statement which is itself unsigned. This supporting witness statement is little more than a re-working of the existing police statements, containing much of the same language but a good deal less detail, certainly than the police statements taken in late March 1998. The claim form makes it clear that the solicitors were approached in April 1998 and it seems likely that the solicitors did not have all of the police witness statements which had been taken shortly before they were instructed. The CICA claim progressed slowly and was not resolved until a rejection decision in a letter of 29 October 2002. It seems clear that the CICA claim had never been augmented by any further witness statements or detail from RM. The decision letter gives reasons as follows:

"RM has lodged this application in relation to alleged abuse by several members of staff while he was in care in St Aidan's and St Vincent's approved schools. Police have been unable to identify many of the men described by RM. Of those identified none have been found guilty of offences against him. Charges were made against Mr McEvoy relating to allegations made by RM but the Judge ordered that not guilty verdicts be listed against these charges because of concerns over the veracity of RM's evidence. In the circumstances I am unable to be satisfied that RM was the victim of a crime of violence and do not consider it appropriate to make an order of compensation from public funds."

170. In fact all of the men against whom RM made significant allegations of sex abuse were identified by him long before 2002. It seems highly likely that the CICA decision was reached on the basis of the single draft witness statement appended to the claim, limited further information from the police and a report of the dismissal of the case against McEvoy in the crown court. I should make it clear that I imply absolutely no criticism of the CICA decision, which was perfectly comprehensible given the material the authority had to hand. However it seems to me to add little to the judgment I must make.
171. RM made his fifth statement to the police on 12 April 1999. In this statement, the Claimant described to DC Higgins how he had recalled the name of the big built man who abused him in St Aidan's and whom he suggested was called Woods.
172. The next account in time given by RM was to Ms Kate Wharton, a clinical psychologist who saw him on 22 July 1999. In addition to consistent accounts of physical abuse, RM described sexual abuse in St Vincent's at the hands of Mr Lally whom he said had "raped, buggered" him on frequent occasions, giving details of attempted oral sexual intercourse and other abuse. RM also described sexual touching at the hands of another male teacher known as "Big Bear" who was, however, gentle and never inflicted physical pain. In relation to St Aidan's, he described to Ms Wharton sexual abuse on a daily basis at the hands of McEvoy, "Roy Orbison or Woods, Benny Hill". He also recalled two other staff members "who were sexual abusers a man named Bamber Gascoigne" who was a teacher and "Olly Colly who was a brick layer". The report goes on to say that RM said he thought other boys were also sexually abused but he never directly witnessed any sexual abuse. Once one reads the text carefully it is clear that he was alleging he himself had been abused by Colquitt and McEvoy.
173. On 14 September 2000, RM gave his sixth witness statement to the police. DC Higgins came to interview him again to follow up some aspects of the case, and the statement reads in part:

"I have to say that I haven't been completely honest with DC Higgins about what I can and cannot remember about St Aidan's school. As I still cannot come to terms with what happened to me and I suffer every night when the memories come flooding back."

This statement goes on to explain the effort that RM had made to forget abuse, the shock he said he sustained when DC Higgins came to discuss abuse, his desire to suppress the sexual abuse, the fact that he was subsequently glad to be contacted by the Officer, but the fact that:

"I don't think I will ever be able to describe in detail the full extent of the abuse."

His statement goes on to say that RM had all along known the name of McEvoy and the name of Woods:

"McEvoy was always known to me as Bamber Gascoigne and Woods as Roy Orbitson."

174. His statement goes on to give more detail about abuse than any of the previous statements, both in relation to McEvoy and in relation to Woods. There can be little doubt that this was in response to pressure from DC Higgins for more information. Towards the end of the statement appears the following passage:

"I am aware that McEvoy is awaiting trial for abusing myself and others I am also aware he may be sent to prison. I have to say that this gives me no satisfaction at all. Nothing can repay the harm that has been done to me It is something that I will have to live with for the rest of my life. I honestly wish the police had never knocked on my door."

This last police statement will of course have been disclosed in the course of the criminal proceedings which ended with the dismissal of charges against McEvoy.

175. In July 2003, RM was referred to Dr Graeme McGrath, a consultant psychiatrist, for a medico-legal report. Dr McGrath had been sent all of the police witness statements and the report and addendum report from the clinical psychologist. It seems clear that no separate statement had then been prepared in the civil claim, or at least it was not sent to the expert. Dr McGrath did not give oral evidence in the hearing before me, but his report and that of the psychologist were admitted in evidence. The Defendants sought to rely on no expert evidence in defence of this claim. Nor did they seek to cross-examine Dr McGrath. I must therefore do the best that I can in considering this evidence in writing, beginning with the evidence relevant to the reliability of RM's account and to limitation.
176. Dr McGrath is a consultant psychiatrist with 16 years experience as an NHS consultant, and training and qualification as a psychoanalytic psychotherapist. For some years, he has been in purely medico-legal practice. On the face of the record, he has quite an even-handed spread of instructions in different kinds of litigation and on both sides of litigation. He is clearly experienced in dealing with historic physical and sexual abuse.
177. Early in his report, Dr McGrath considers the sequence of witness statements provided to him in the following terms:

"One feature of these statements is RM's account that after disclosing the abuse he began to have more frequent and more intrusive memories of what had occurred and as a consequence gradually recalled more detail. In my experience this is not uncommon in people who have suffered abusive experiences but have, in effect, tried to avoid thinking about such experiences for many years."

178. In considering the approach taken by his clinical psychologist colleague, Dr McGrath is critical of "a lack of clarity about the specific psychological consequences which Ms Wharton would attribute to the abuse". It seems to me it would be hard to describe Dr McGrath as unduly partisan.
179. Dr McGrath goes on to recite RM's account to him in some detail. There is little or nothing in what he recorded which is inconsistent with the latest position on the witness statements given to the police or with subsequent witness statements provided in this action. Dr McGrath concluded that RM had presented his account in a:

"Clear and straightforward fashion, and I had no reason to believe that he was exaggerating his symptoms or that he was attempting to mislead me in any way."

Whilst he emphasised he was not trying to obtain a highly detailed account, Dr McGrath did however:

"…explore his experiences in sufficient detail to gain a clear sense of some specific incidents of abuse and also of RM's emotional response to such experiences. I found his account consistent and credible."

180. Dr McGrath found no evidence of clinical levels of depression or anxiety and nothing to suggest any other underlying mental illness. He felt RM had functioned reasonably well in his adult life, did not have any anti-social personality disorder, and that it would be difficult to conclude there were any employment difficulties suffered by RM as a result of his time in care.
181. Dr McGrath went on to give this opinion in diagnosis:

"The most important psychological consequence of RM's abusive experiences is the marked change that has occurred since the disclosure to police officers investigating abuse in care. In my experience, this reaction is very typical of those people who cope with abusive experiences by "forgetting" in the way described above…….it is often the case, therefore, that people experience post traumatic symptoms which may be thought to be more appropriate to abuse itself, but which have effectively been delayed for many years."

Dr McGrath goes on to make a formal diagnosis of post traumatic stress disorder suffered by RM, originating as:

"A direct result of the process of disclosure of abuse to the police as described above [which] …….can therefore, be said to have been caused by the original trauma……."

182. The first statement disclosed in these proceedings is dated 26 February 2005. This is broadly consistent with the picture given in the material up to 2003, but oddly contains less detail than can be found in the police witness statements, the report of Dr McGrath and the reports from Ms Wharton. For example, there appear in this statement to be no allegations of sexual abuse in relation to St Vincent's. RM gives specific details of physical abuse at the hands of Mr Lally consistent with the accounts that had previously been given, but leaves out the allegations of sex abuse against Lally. I have to consider whether that could be consistent with a process of lying by RM, for whatever motive. In relation to St Aidan's, there are specific allegations of both physical and sexual abuse, against McEvoy and Woods but with a good deal less detail than had already been set out in earlier accounts.
183. The last of RM's many witness statements was prepared for these proceedings and is dated 20 March 2009. Whilst continuing to emphasise RM's difficulty in speaking about abuse, the account given here is much fuller and essentially encompasses everything that had been said before. One point of interest is that in the course of this witness statement, the Claimant names the very large man who looked like a bear at St Vincent's as being a Mr Woods. A similar physical description is given as on previous occasions. It is of some interest that the Defendants suggested they could find no record of a teacher with the name Wood or Woods at St Vincent's (as opposed to St Aidan's where it is agreed there was such a teacher). This point is made in the witness statement of Mrs Barbara Taylor, the administrator working for the Defendants, dated 2 February 2010.
184. I have alluded to some of RM's evidence to me above. He adopted his witness statements in the action, and explained the earlier discrepancies in his accounts by his desire not to address the abuse. Even when giving evidence, he stated that his account was not yet complete. When questioned about abuse he said "I have not told the full story, I haven't given the full details". In dealing with abuse by Lally, he insisted that Lally had thrown him down the stairs and sexually abused me, adding "and his son as well". I was concerned by the added, throw-away allegation. He agreed that he had lied in his first statement, and later when saying he could not remember the names of abusers: "I have known the names all my life". It was put directly to him that he was lying about having been abused, which he rejected, calmly and without over-emphasis. However, he could give no explanation as to why, if he had known the names of his abusers all along, and once he had decided to describe the abuse he sustained, he had not named the abusers: "I can't say why".
185. The Claimant relies on a number of witnesses as supporting his claim. The first is his partner Jeannette Skelland, who gave live evidence. She was unaware of the detail of the claim. She could confirm that she detected a change in RM's mood when the police contacted him about abuse: he became moody and snappy. It was the police intervention which led to her first becoming aware that the Claimant had been in care. She never pressed him for details of the abuse.
186. RM relies on the evidence of the Claimant JA, with whose evidence I have dealt earlier in this judgment. I have also addressed the evidence of the witness Cranny, and concluded his evidence is of little value.
187. Kevin King gave evidence in court, despite the fact that his own case had been settled recently before the hearing in February, partly on the basis he was unfit to come to court. Undoubtedly, he has genuinely serious heart disease. His account relevant to this case was of abuse to him in St Vincent's when he was very young. According to his statement, he was 7 or 8 years old when he went there, and remained for about two years. Part of the abuse he allegedly suffered was at the hands of Mr Lally, taking the form of oral sex abuse, digital penetration and of attempted buggery. He also suggests abuse by another named member of staff and by the priest resident at St Vincent's. Some of the details of his account do provide support for details to be found elsewhere in the evidence, but not specifically as to any detail coming from RM.
188. Mr King came under attack on the basis that he had allowed his claim in this group to proceed on a false basis in relation to claiming damages for psychotherapy. He has previously settled a claim for historic sex abuse against a different defendant, in the course of which he received an award including damages for therapy which he never purchased, and he admitted in evidence he had no intention of purchasing. In my view, this attack went home, and it seems probable that Mr King knew what he was doing in this regard. This must reduce his credibility. He also has a number of criminal convictions for dishonesty. However, Mr King was an apparently thoughtful and frank witness.
189. Paul Hitchener was called live. He went to St Vincent's when he was 11 years old, and alleges abuse by a number of members of staff, particularly the housemaster Williams, who received the nickname "Basher", and a teacher called Patrick Rooney. Hitchener's account was that Williams abused him particularly in the showers, by touching his anus and genitals sexually under the pretence of inspecting for cleanliness. There seemed to me little real support to be drawn for RM's case from this account.
190. Terence Moogan is a former pupil in St Aidan's and he gave an account in a statement dated April 2005 served under the Act, Mr Moogan now being resident in California. The nub of his evidence is that he was abused on about three occasions by Colquitt, and to confirm that there was other sexual abuse in St Aidan's between the pupils. Moogan is himself a Claimant. Two statements have also been admitted from Stephen Power, who is not a Claimant. He was admitted to St Aidan's when he was just 13 years old and stayed for a long period, until he was 15. He describes "rife" sexual activity between the pupils at St Aidan's, a lot of bullying amongst pupils and attempted sex abuse by named boys on him, and sexual abuse against him by Colquitt. This took the form of fondling his bottom. Power recounts that he and another boy reported this activity to their housemaster, but the complaint was brushed aside as a misunderstanding of friendliness. The consequence was hostility from Colquitt, who it appeared had been told of the complaint. Mr Power recounts gossip about other members of staff and sexual abuse, but gives no evidence of it. In his view, most of the sex in St Aidan's was between the pupils, rather than between pupils and staff, which was done "on an underground basis". His evidence is capable of giving some support to the suggestion Colquitt was an abuser, but little or nothing to RM's account of being a victim. This Claimant also relies on the evidence of James Powell, which I have addressed earlier in this judgment.
191. I heard evidence from Terence Rogan, a witness who is a Claimant, and who was a pupil in St Aidan's from 1971 onward, from the age of 13, until about 15 years old. Mr Rogan has made successive statements about what happened to him there, which again repay sequential consideration. He made his first statement to the police on 14 August 1996. In that statement he recalled some abuse in Menlove Assessment Centre, before he went to St Aidan's. In dealing with the latter, Mr Rogan told the officers that "Olly Colly" a teacher whom Rogan called Collins, would fondle his bottom, would hug him from behind and "rub his groin into your backside". However he was explicit that Olly Colly "never forced me or committed any sex acts". He said he could remember no incidents of sex abuse. He was "sure it happened but I am unable to recall it".
192. Rogan's next account was given to Dr Kate Bonser, a psychologist, in an interview on 31 August 1999. To Dr Bonser, who was convinced by his account, Mr Rogan gave a consistent account concerning "Olly Colly" and fondling. However, he then recalled another episode, which did amount to clear sex abuse. On this version, Rogan got covered by bitumen in the course of some work, and was sent by Olly Colly to shower. In the course of the shower "another teacher" whom he could not name, assaulted him and anally raped him in the showers.
193. On 7 November 2003, Mr Rogan was interviewed by Dr Ikkos, a psychiatrist. Again he gave a consistent account concerning Olly Colly and his fondling. However, on this account, it was Olly Colly who was involved in the shower incident, although he did not try to penetrate Rogan anally. Dr Ikkos noted the discrepancy in his report, with the account given to Dr Bonser. Dr Bonser made a further report on 6.xi.04, addressing this discrepancy, suggesting it did not derive from inaccuracy but from a reluctance to describe this shocking event yet again. It is worthy of note that the experts agree Mr Rogan has psychological problems which reach clinical significance.
194. On 20 September 2005, Rogan made a statement in these proceedings. In this version, a consistent account again was given of Olly Colly fondling inappropriately. In relation to the shower incident, this account has Olly Colly as the assaulting teacher, but in this version pushing his penis into Rogan's backside and penetrating him.
195. In evidence to me, Mr Rogan could give no explanation of these discrepancies. On his account in oral evidence "Olly Colly never forced me or committed sex acts – he was a pervert and the threat was there, but he didn't do anything to me". It was another teacher who assaulted him in the showers. For what it is worth, the picture of Colquitt's general behaviour given in these accounts is consistent with others, but the witness cannot be convincing as to anything else, and I reject his account of any shower incident as likely to be a fantasy, even if he now believes something of the kind. His evidence can add very little to support the case of RM.
196. The Defendants have no specific factual evidence to advance in relation to the claim by RM, all the relevant alleged abusers being dead. They rely heavily on the discrepancies between his various accounts.

Limitation

197. The Claimant was born on 28 September 1955. He was in St Vincent's from February 1968 to September 1969, and in St Aidan's from October 1969 to November 1971. The primary limitation period expired on his 21^st birthday, on 28 September 1976. The claim was issued on 26 May 1999, thus nearly 23 years after the end of the primary limitation period.
198. There are a number of relevant dates of death of those alleged to be abusers: Colquitt in 1988, Lally in 1994, Hill in 1997, Maguire in 2002, and as stated above, McEvoy in March 2007.
199. As I have noted, Dr McGrath has concluded that this Claimant has had PTSD as a delayed response to abuse, triggered by the police investigation. There is no evidence of any earlier identifiable psychiatric illness or psychological disorder. In addressing the effects of the sex abuse, Ms Wharton concluded that RM had achieved no formal diagnosis of any psychiatric illness or disorder, but nevertheless concluded that he had "post-traumatic symptoms" and "psychological difficulties", and that the experience had led to an increase in criminal offending. I have noted that Dr McGrath is dismissive of the looseness of these conclusions.
200. RM addressed the reason for delay in issuing proceedings in much the same terms as his fellow Claimants. Once the matter had been re-opened by the police investigation, however, there was little delay.

Limitation: Knowledge

201. As with the other two cases, knowledge is conceded in the case of RM.

Limitation: Section 33 Limitation Act 1980

202. I have set out the crucial dates above. It is common ground that it was 22 years from the end of the primary limitation period to the issue of proceedings. The delay by the Claimant it is said was principally because of a strong desire to suppress or avoid this whole aspect of his early life, a factor accepted by both experts as applying strongly here. He was reluctant to make a claim, and initiated the process only after the police investigation.
203. The evidence bearing on the abuse has been rendered to a marked degree less cogent by the delay before issue. Here a significant number of key witnesses for the defence died, often many years before the issue of proceedings. In relation to McEvoy, the death was much later and the analysis I have set out earlier in this judgment applies. If the loss of evidence was that of McEvoy alone, or even principally McEvoy, the concern would be much less. Here however many have died.
204. Moreover, the most striking feature of this case is the difficulty of the Claimant's successive accounts. In my view it is particularly hard to see how the truth can now properly be established on the facts of this case. There is evidence to support the existence of significant level of abuse in St Aidan's and St Vincent's. It may well be that RM was abused whilst in these institutions, but by whom and to what extent is very hard to establish on the evidence now available
205. In this case, I conclude there is a significant loss of cogency in the evidence by reason of the delay, in a context where more evidence would be particularly desirable.
206. There was no relevant conduct on the part of the Defendants here, in the sense of any improper conduct causing delay to the carriage of the case by the Claimant. There has been excessive delay since these claims were issued for which both parties bear responsibility.
207. There is no relevant disability within the meaning of S33(3)(d).
208. I have already dealt with the reasons for delay on the part of the Claimant instituting proceedings. There was no significant delay once this Claimant in fact realised he could take legal proceedings.
209. No delay arose from seeking legal or medical advice or its content, which is relied on by the Defendants.
210. Is this claim proportionate? It would be a proportionate claim, if the abuses complained of were established, since the claimed abuse is serious. In addition, albeit delayed in time, there is evidence of PTSD as a consequence of the abuse.
211. I have reminded myself that the discretion under S33 is unfettered and not merely a matter of considering the specific matters indicated in the sub-paragraphs of S33(3). However, the fundamental point in this case is that given the discrepancies and conflicts in the accounts given by the Claimant, set beside the significant loss of evidence of potential aid to the Defendants, it seems to me there is a real risk of injustice if this matter were to proceed. For those reasons, I decline to extend the limitation period. The action must be dismissed as being out of time.