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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1002,  CP Rep 45
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MRS JUSTICE SWIFT DBE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE TOULSON
|- and -
|Society of Jesus Trust of 1929 for Roman Catholic Purposes and
The Governors of Preston Catholic College
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Robert Seabrook QC and Justin Levinson (instructed by Irwin Mitchell Llp) for the Respondent
Hearing date: 27 July 2010
Crown Copyright ©
Lord Justice Thomas:
i) The judge should not have decided that the abuse had occurred before deciding whether to exercise the power under s.33 of the Act to extend the time limit. What the judge had done was to "put the cart before the horse", an approach not permitted on the authorities and which had vitiated the exercise of the discretion under s.33.
ii) The judge had applied the wrong principle in determining whether the Governors had suffered prejudice in relation to the issue of causation.
The Governors sought a retrial of the issues on limitation, liability and causation before a different judge.
1. The exercise of discretion under s.33
(a) The authorities
"Where a judge determines the s. 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay."
"The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered."
"First, in so far as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at paragraph 52, that is likely to bear significantly upon the possibility of having a fair trial."
"21. As to vi), we think that there are now likely to be many cases in which a judge will consider that it is not feasible to decide the issues simply by reference to the pleadings, written witness statements and the extent and content of discovery. He or she may well conclude that it is desirable that such oral evidence as is available should be heard because the strength of the claimant's evidence seems to us to be relevant to the way in which the discretion should be exercised. We entirely agree with the point made at vii) that, where a judge determines the s. 33 application along with the substantive issues in the case he or she should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. To do otherwise would, as the court said, be to put the cart before the horse.
22. That is however simply to emphasise the order in which the judge should determine the issues. When he or she is considering the cogency of the claimant's case, the oral evidence may be extremely valuable because it may throw light both on the prejudice suffered by the defendant and on the extent to which the claimant was reasonably inhibited in commencing proceedings. Thus, if the claimant's case is beset by inconsistencies and the claimant shows himself in evidence to be unreliable, the court may conclude that the delay is likely to prejudice the defendant in the way contemplated in Eli Lilly, namely by being put to the trouble and expense of successfully defending proceedings and then not being able to recover costs against impecunious claimants. In those circumstances, viewing the matter more broadly, as A v Hoare enjoins the courts to do, it may well be that it would not be equitable to allow the claimant to proceed. On the other hand, if the evidence of the claimant is compelling and cogent that the abuse occurred, and it is said that it was the abuse that inhibited him from commencing proceedings, that is surely a compelling point in favour of the claimant."
(b) The contention of the Governors
(iii) The task of an appellate court
(iv) The order of the judgment
i) The claimant's education until he was 11;
ii) The claimant's evidence as to what had happened between him and Father Spencer SJ;
iii) An account of the 11 other witnesses, contemporaries of the claimant at the College;
iv) The evidence called from a lay teacher, the headmaster at the relevant period and Father Edwards SJ. The last witness was important as it had been alleged by the claimant that Father Edwards had walked into the room when Father Spencer was rubbing 'Deep Heat' into the claimant's naked groin during the period of abuse between 1969 and 1975; he had not been asked about the events until 2007 and only his witness statement was adduced at trial, as he was too ill to attend the trial or give a further statement;
v) The claimant's time at University, his career as a solicitor, his contact with Father Spencer in later life and the claimant's current position;
vi) The events of 17 April 2005 which gave rise to the claim that the claimant only had the relevant knowledge then;
vii) Events after 17 April 2005;
viii) The parties' contentions about the abuse;
ix) The findings as to the happening, nature and extent of the abuse;
x) The alleged effects of the abuse and the decision that it was inappropriate to determine the issue of causation.
"In the face of evidence such as this, the defendants were always going to experience great difficulties in persuading a court that the claimant's allegations were untrue or exaggerated."
She then carefully analysed the prejudice, particularly that caused by the death of Father Spencer and the difficulty in finding other members of the staff at the College. She concluded:
"I regard it as highly unlikely that the availability of other members of the staff of the school would have improved the school's prospect of succeeding on the issue of liability."
She then considered the effect of delay on the cogency of the evidence relating to the psychiatric effect of the abuse on the claimant. I will return to that at paragraphs 23 and following below. She concluded at paragraph 129:
"To the extent that there is any prejudice in relation to the issue of causation, it is likely to operate to the detriment of the claimant since he will bear the burden of proving his loss."
"Despite these criticisms of the claimant's evidence, [the Governors] did not seriously dispute the fact that Father Spencer had been guilty of some abuse, in the form of filming the claimant naked and fondling him sexually. However, they did not accept that the abuse was as long-lasting or as severe as the claimant had described."
In contrast there were ample grounds for concluding that the prejudice to the Governors, particularly the death of Father Spencer, the inability of Father Edwards to give evidence and the general effects of delay, had not materially affected the ability of the Governors to defend the action.
2. The judge's failure to approach the exercise of the discretion in relation to causation in accordance with principle
"It is necessary to consider also the effect of delay on the cogency of the evidence relating to the psychiatric effects of the abuse on the claimant. There is no doubt that the task of unravelling, more than 35 years after the abuse ended, what, if any, impact it has had on the claimant would be a difficult one. Having said that, there is some force in the contention made by the claimant that there would have been difficulty also (perhaps even greater difficulty) in predicting when the claimant was 21 or 22 what the effects of the abuse would be on his future life and career. The burden of proving that the abuse has had the various effects which the claimant contends on his academic achievements, personality and psychiatric health, as well as upon such matters as his ability to form relationships and to achieve his employment potential, would of course lie on the claimant himself. The exercise of determining causation would require a detailed scrutiny of the claimant's past academic, employment and personal history, together with an examination of the available lay and medical evidence. It would also involve an assessment of the claimant's reliability as a witness. These are exercises which the courts are well used to carrying out. Given the delay in this case, they would require particular care."
She then reached her conclusion in paragraph 129 which I have set out at paragraph 18 above.
Lord Justice Toulson:
Lord Justice Mummery: