Limitation in sexual abuse claims
CD v The Catholic Child Welfare Society & Others [2018] EWCA Civ 2342
The Court of Appeal held that a Judge should not have exercised his discretion under s.33 of the Limitation Act 1980 to allow a claim to proceed based on a Claimant’s allegations that he had been raped by a member of staff at the school where he was a pupil 24 years earlier.
In a Reserved Judgment, given on 21 December 2016, the first instance Judge exercised his discretion under s.33 of the Limitation Act 1980 to disapply the limitation period laid down by s.11 of that Act and found that CD had been anally raped, on one occasion, in July 1990, by Brother J, a member of staff of St William’s Community Home, the school that CD was then attending. At the time of the incident CD was 12 years old. The Defendants were granted permission to appeal on the basis that the Judge was wrong to exercise his discretion to disapply the limitation period.
The relevant chronology was as follows:
July 1990
The rape was alleged to have occurred on a trip to Scotland led by Brother J.
Summer 1990
Contemporaneous records by CD’s keyworker at the material time, TM, who reportedly had a good relationship with CD, and a teacher, recorded that CD had enjoyed the trip.
March 1991
An educational psychologist who assessed CD noted that CD was unable to recall anything he disliked about St William’s.
August 1991
Contemporaneous records noted that CD had a trusting relationship with CB who had taken over as his keyworker at the school in October 1990.
1993
The police began an investigation into allegations of physical and sexual abuse at the school. CD was interviewed, but denied suffering any abuse.
2003
CD was interviewed by the police again and gave a statement saying “I do not have any complaints in respect of any form of abuse whilst I was resident against any member of staff or other resident”.
2005
CD was contacted by a solicitor.
18 January 2006
Group litigation was commenced by a Claim Form alleging in general terms “Damages for injuries sustained as a result of abusive behaviour whilst the Claimants were in the care of the Defendants at the St William’s Residential Children’s Home as minors”.
21 July 2006
CD was interviewed by his own medical expert and made allegations of slapping and hitting, but said, as far as he could recall, he was never the subject of any overt sexual behaviour.
18 May 2007
CD’s Witness Statement alleged physical abuse and referred to an incident on the Scotland trip when he saw Brother J lead another boy out of the bedroom.
November 2012
Preliminary issue regarding vicarious liability resolved by the Supreme Court.
14 February 2014
CD served Particulars of Claim alleging, for the first time, that Brother J had raped him.
November 2015
Brother J was convicted of a number of sexual offences against pupils, but CD was not one of them.
The Court of Appeal confirmed that the disapplication of the limitation period is an exception to the general rule. For that reason, the burden of persuasion lies on the Claimant. Delay of itself may not preclude disapplication of the limitation period. What is of importance is what prejudice the Defendant has suffered by the delay. Lewison LJ referred to AS v Poor Sisters of Nazareth [2008] “The issue on which the Court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice’’. Further, it was clarified that once limitation has expired, it then becomes relevant to consider the whole of the period that has elapsed since the cause of action accrued.
Whilst it was accepted that delay ended when the proceedings were issued, the Court of Appeal held that the whole period from the accrual of the cause of the action in 1990 to the date when CD first informed the Defendants of the real nature of the claim (in February 2014) was to be taken into account in considering all the circumstances of the case.
The Court of Appeal found that the first instance Judge had made a number of errors of law, including in his consideration of the cogency of CD’s evidence. He had seriously underestimated the prejudice to the Defendants in not being able to call TM and CB, who could not be traced. He accepted CD’s evidence that he was too ashamed and embarrassed to speak up earlier, but made no finding as to whether that was reasonable or prompt. He failed to consider the overall delay between the date of the alleged rape and the notification of that claim to the Defendants, and the prejudicial effect of that on the Defendants’ ability to defend the claim. Further, the Judge determined that a fair trial could take place, but that was not determinative.
In re-exercising the discretion, the Court of Appeal identified the factors that weighed the most heavily as:
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The cause of action in relation to the sexual assault accrued in July 1990, but CD did not reveal the nature of the allegation that he wished to make until February 2014; and even then in the tersest of terms. The overall effective delay was, therefore, nearly 24 years. The complaint, as it eventually emerged, was, therefore, a thoroughly stale complaint.
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By that time, the litigation had been ongoing for many years and CD had had the benefit of legal advice since 2005.
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In the period since July 1990, the Defendants had lost touch with potentially highly relevant witnesses whose evidence might be expected to have been consistent with the contemporaneous records that they made.
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CD’s complaint was uncorroborated, came out of the blue in 2014, contradicted previous statements and was at variance with contemporaneous documents.
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On the Judge’s own findings, the cogency of CD’s evidence was itself affected by the passage of time.
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Although the Judge awarded CD a “modest allowance” (unquantified) for minor physical assaults, it would not be proportionate to disapply the limitation period on that account.
The Court concluded that the Defendants were exposed to the real possibility of significant prejudice in their ability to defend this claim so long after the event and without the ability to call relevant witnesses. Accordingly, the appeal was allowed and Judgment entered for the Defendants.
Comment
The particularly unusual element of this case was that even once proceedings were issued, the real nature of CD’s claim was not made known to the Defendants until some 8 years later when Particulars of Claim were served. CD’s Counsel sought to argue that issue of the Claim Form was good enough, and, that once proceedings had been issued, if the Defendants wanted to know more about the nature of the case, they could, and should, have asked for more information as the rules permitted them to do. Lewison LJ disagreed commenting "Where, as here, a Claimant asks the Court to exercise a discretion in his favour which disapplies a limitation period passed for the benefit of Defendants, it seems to me that it is incumbent upon him to put all his cards on the table at the earliest opportunity."
The case is useful in clarifying that in considering all the circumstances of the case, it is not the delay from the expiration of the primary limitation period to the issue of proceedings that is relevant, but the whole period of delay from the date of the cause of action to the date when the Defendants were first put on notice of the true nature of the claim. The Court of Appeal also highlighted the significance of being unable to adduce relevant witness evidence, particularly when there were contemporaneous records which were not supportive of CD’s case.
