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Historic abuse claims: When is late too late?

Six reported cases in three months give clear judicial guidance on when the court should/should not disapply the limitation period

Paul Donnelly and Samantha Chambers acted on behalf of the Defendant and its insurers in Wilde v Coventry City Council (2017) – a historic abuse claim where HHJ Moloney QC refused to exercise discretion (under section 33 of the Limitation Act 1980) to disapply the limitation period following a 2 day preliminary issue hearing. In this article, they discuss the Wilde case and other recent court decisions on limitation defences in historic sexual abuse cases, to provide guidance on when judicial discretion to disapply the limitation period should/should not be exercised.

Since A v Hoare [2008] a deliberate criminal act of abuse is considered a negligent act for limitation purposes. Therefore, under section 11 of the Limitation Act 1980, the claim must be brought within 3 years from the date the cause of action accrued, or from when the claimant acquired the requisite 'knowledge' (under section 14). Unlike the pre 2008 position, the court now also has discretion to disapply that primary limitation period under section 33 of the Act "if it appears to the court that it would be equitable to allow an action to proceed".

Of particular relevance to the claimant's claim in Wilde is that, unknown to many, section 33(1) provides the ability for the court to exercise its discretion "to any specified cause of action to which the action relates". Therefore it is open to the court to allow part of a claimant's claim to proceed, whilst ruling that the remainder of the case is statute barred. 

The facts of Ms Wilde's claim

The claimant alleged to have been subject to physical and sexual abuse at the hands of the principal, staff members and fellow residents at a children's home in the late 1970s to early 1980s. She alleged that she became pregnant by the principal and gave birth to a child who was immediately removed into Local Authority care.

In 2006, the ex-principal of the home had been convicted of the rapes of 2 girls and indecent assaults of 5 others after a lengthy police investigation, following which a number of victims pursued civil claims against the defendant. The claimant was not aware of or involved in the criminal proceedings nor those earlier civil claims and did not come forward until May 2013, when she appeared in a local newspaper article and confirmed that she intended to pursue a civil claim. Proceedings were issued in March 2016, almost 30 years after expiry of the statutory limitation period.

Very little evidence of the claimant's time at the children's home could be located. In particular, none of her social services records or contemporaneous medical records could be located, the majority of the log books for the children's home (from when the claimant alleged she was there) could no longer be found, many of the potential witnesses had now died or become untraceable and those who had been located could not remember her. The only evidence available to show that the claimant had been at the children's home was a juvenile court record and 3 entries in the visitor's book, in which the claimant had signed her name. This evidence covered a period of approximately 7 months, whereas the claimant alleged to have been at the home for around 3 years. 

Approach to Section 33 discretion

The burden of proof is on the claimant to persuade the court that the limitation period should be disapplied. Section 33(3) sets out a list of particular factors which the court should take into account. They are:

(a)  the length of, and the reasons for, the delay;

(b)  the extent to which, having regard to the delay, the evidence adduced or likely to be adduced is likely to be less cogent than if the action had been brought in time;

(c)  the conduct of the defendant after the cause of action arose;

(d)  the duration of any disability of the claimant arising after the date of the accrual of the cause of action;

(e)  the extent to which the claimant acted promptly and reasonably once he knew the act or omission complained of might give rise to a claim for damages;

(f)   the steps, if any, taken by the claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

The relevance and weight of each of the six factors will vary on a case by case basis as the court considers the prejudice to the parties and whether a fair trial can reasonably be held.

Section 33 also confirms that the court must consider all of the circumstances of the case and in his Court of Appeal judgment in RE v GE (2015) McCombe LJ confirmed that "one relevant factor is surely the very existence of the limitation period which Parliament has decided is usually appropriate." This was supplemented by Lewison LJ in his short, supporting judgment: "…it seems to me that if a fair trial cannot take place it is very unlikely to be "equitable" to expect the defendant to have to meet the claim. But if a fair trial can take place, that is by no means the end of the matter. In other words, I would regard the possibility of a fair trial as being a necessary but not a sufficient condition for the disapplication of the limitation period…"

The judgment

At the start of his closing submissions the claimant's counsel restricted the claimant's case to allegations of vicarious liability against the principal and invited HHJ Moloney QC only to exercise s.33 discretion with respect to that specific cause of action only – i.e. not in relation to the more widespread systemic allegations.

The reason provided by the claimant for the delay in commencing a claim was fear that she would not be believed, as she had not been believed when she informed police of the abuse as a child. HHJ Moloney QC was not persuaded that this was the claimant's principal reason, noting that there was evidence in her medical records that "she had no difficulty in discussing the general topic of abuse and the details of it in some respects with her medical advisers, who regarded it as horrendous and as raising serious concerns." Despite accepting that it was understandable that the claimant had not sought legal advice before 2013, as cases of this nature were less common and less publicised, he considered that the delay "was not the product of any specific good reason, for example of a medical nature, such as would provide a strong justification for missing the statutory limitation period."

The judge considered that the lack of documentary evidence was "a salient feature of this case". The sparse evidence which was available gave "no clear evidence of when she arrived or when she left, let alone of any material event whilst she was there other than the arson attempt." He acknowledged that it was "entirely understandable" that the defendant did not wish to call oral evidence from the principal and noted the difficulties in tracing the witnesses who were still alive, many of whom were now elderly. He also noted the absence of any reference to the claimant in the criminal investigations or the previous civil claims and the adverse effect on the oral evidence in having no contemporaneous documents with which to assist the witnesses' recollections. He concluded that there had been "a seriously detrimental effect on the cogency of the evidence available".

HHJ Moloney QC concluded that a fair trial would be impossible given "the almost complete absence of documentary evidence" from the claimant's time at the children's home and the inconsistencies in her account shown by the documents which were available. Furthermore, he felt that the claimant had provided "no sufficiently strong reason" for the almost 30 year delay in bringing her claim. He therefore refused to exercise discretion to extend the limitation period.

So when will/won't the courts exercise discretion?

This decision follows a trend of useful judicial guidance on the exercising of section 33 discretion. Some might say the developments are positive for defendants but, in truth, we would say they are positive for litigants as a whole who now have some clear working examples to illustrate the circumstances in which the court is/is not likely to exercise s.33 discretion. This increases certainty on both sides and should assist in avoiding unnecessary litigation of potentially stale claims.

Useful judicial guidance

In December 2016, HHJ Gosnell handed down judgment in the related cases of AB, CD, EF and GH v Catholic Child Welfare Society (Diocese of Middlesbrough).  HHJ Gosnell considered the difficulties in assessing the oral evidence of witnesses regarding events which had occurred a long time before, relying on the judgment of Mr Justice Leggatt in the commercial case of Gestmin SGPS S.A. v Credit Suisse (UK) Limited (2013), in which Leggatt J had concluded that the starting point for factual findings should be the available contemporaneous documents, rather than oral witness evidence which was constricted by "the unreliability of human memory".

HHJ Gosnell also considered the reason for delay given by all four claimants, that they had been embarrassed and too ashamed to come forward sooner, stating: "Whilst I recognise and appreciate that it is typical for a victim of child sexual abuse to want to both repress the memory and avoid disclosure of the abuse the justification for non-disclosure is not self-proving and requires some assessment of the individual alleged victim”. In light of these considerations, HHJ Gosnell's conclusions in respect of the four claims were different:

AB – 25 years out of time and the judge was not convinced of the claimant's reason of embarrassment or shame. The available documentation was very limited and a number of witnesses had died in the intervening period. Section 33 discretion was not exercised.

CD – 7 year delay and only limited missing documentation. The judge accepted that the claimant's embarrassment and shame was genuine and a good reason for the delay. Section 33 discretion was exercised.

EF – 29 years out of time and virtually no records were now available. The judge did not accept that the claimant was embarrassed or ashamed and found that it had just not occurred to the claimant to bring a claim before. Section 33 discretion was not exercised.

GH – 14 year delay, there was not a huge amount of documentation available but a significant number of relevant documents had been located. The judge accepted that, if true, the claimant's reason of embarrassment and shame was a good reason for the delay. Section 33 discretion was exercised (although the claimant failed to discharge the burden of proving the abuse occurred so the claim failed).

Then we also have:

Bowen v Scout Association (2017) – Perpetrator had been convicted of the abuse 15 years earlier but had since died. The claimant provided no understandable or good reason for the delay since the conviction. Section 33 discretion was not exercised.

Wilde v Coventry City Council (2017) – 30 years out of time. Very few documents available, witnesses had died/could not remember the claimant. Serious detrimental effect on cogency of evidence. The judge did not accept the claimant gave a good reason for the delay. Section 33 discretion was not exercised.

Comment

Limitation principles and section 33 discretion act as important counter balances to one another. Together, they serve an important public policy in facilitating late claims to be brought where appropriate whilst avoiding defendants from being unfairly forced to respond to claims where, because of the delay, it is simply not possible to adequately assess the validity of the claim.

Defendants are, quite rightly, being increasingly cautious when raising a limitation defence. It is not in the interests of either the claimant or defendant communities to raise such defences in the wrong circumstances. However, section 33 discretion remains an "exceptional indulgence" for which the claimant must persuade the court that there is good reason. The careful selection of such defences has produced these six reported cases (where discretion was exercised in two out of the six cases) in just a three month period. Collectively these cases provide a useful checklist to insurers and defendants against which to review current and future files and assist in determining whether a limitation defence ought to be raised/pleaded.

Contact

For further information please contact:

Paul Donnelly, Senior Associate on 0121 200 0439 or at paul.donnelly@dwf.law; or Samantha Chambers, Trainee Solicitor on 0121 200 0450 or at samantha.chambers@dwf.law

By Paul Donnelly and Samantha Chambers

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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