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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Archbishop Bowen & Anor v JL [2017] EWCA Civ 82 (21 February 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/82.html Cite as: [2017] EWCA Civ 82 |
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Linked with B3/2015/3672 & B3/2015/3672(A) |
ON APPEAL FROM MANCHESTER COUNTY COURT
HIS HONOUR JUDGE PLATTS
1IR72777
Strand, London, WC2A 2LL |
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B e f o r e :
SIR ERNEST RYDER SENIOR PRESIDENT OF TRIBUNALS
and
LORD JUSTICE BURNETT
____________________
ARCHBISHOP MICHAEL GEORGE BOWEN - and - THE SCOUT ASSOCIATION |
1st Appellant 2nd Appellant |
|
- v - |
||
JL |
Respondent |
____________________
Steven Ford QC and Adam Weitzman QC (instructed by BLM Solicitors) for the 2nd Appellant
Liz-Anne Gumbel QC and Justin Levinson (instructed by Slater and Gordon) for the Respondent
Hearing dates: 17th and 18th January 2017
____________________
Crown Copyright ©
Lord Justice Burnett:
(i) The judge applied the wrong test to the question of consent and, on the evidence before him, was obliged to conclude that JL had consented to the sexual activity at all material times;
(ii) The judge erred in his approach to the credibility of JL and, whilst recognising his unreliability in many respects, should have rejected his account of events wholesale;
(iii) In the light of a letter written by JL to the judge after the trial, but after he had completed the draft judgment, in which JL accepted that an aspect of his evidence on oath was not true, the judge should have acceded to the request of the appellants to be allowed to cross-examine JL further;
(iv) The judge erred in concluding that the appellants were vicariously liable for the actions of Fr Laundy;
(v) The judge was wrong to disapply the primary limitation period;
(vi) On behalf of the Scout Association alone, the judge was wrong to apportion liability equally between the appellants.
The facts in outline
"(1) It is an offence for a person to make an indecent assault on a man.
(2) A boy under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.
(3) …"
Therefore, the consent of a man of sixteen or over to the "indecent" act is a defence to a charge under section 15(1).
Limitation
"Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a) the provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
…
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
…"
"84. With regard to the exercise of the court's discretion under section 33 of the 1980 Act, however, I would make just three brief comments—not, let it be clear, in any way to fetter a discretion which the House in Horton v Sadler [2007] 1 AC 307 recently confirmed to be unfettered, but rather to suggest the sort of considerations which ought clearly to be in mind in sexual abuse cases in the new era which your Lordships are now ushering in, firstly, by departing from Stubbings v Webb and, secondly, by construing section 14(2) so as to transfer from that provision to section 33 consideration of the inhibiting effect of sexual abuse upon certain victims' preparedness to bring proceedings in respect of it.
85. First, insofar 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 para 52, that is likely to bear significantly upon the possibility of having a fair trial.
86. Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations - see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.
87. Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffmann at paragraph 36). It is not to be supposed that the exercise of the court's section 33 discretion will invariably replicate that position."
"73 … the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones."
The Nugent Care Society case provided an opportunity for the Court of Appeal to review aspects of the law of limitation in claims arising out of sexual abuse, including under section 33 of the 1980 Act. An earlier comprehensive review had been undertaken by the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, [2003] QB 1441, but was revisited in the light of the A v Hoare case.
"We take the following to be well-established and/or uncontroversial starting points for the exercise of the discretion:
i) In multiple claims of this sort, a judge should consider the exercise of his discretion separately in relation to each claim; Nash v. Eli Lilly & Co. [9193] 1 WLR 782, CA, per Purchas LJ at 808F-810E.
ii) The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it; …
iii) Depending on the issues and the nature of the evidence going to them, the longer the delay the more likely, and the greater, the prejudice to the defendant.
iv) Where a judge is minded to grant a long "extension" he should take meticulous care in giving reasons for doing so; Mold v. Hayton, Newson [2000] MLC 207, CA.
v) A judge should not reach a decision effectively concluding the matter on the strength of any one of the circumstances specified in section 33(3), or on one of any other circumstances relevant to his decision, or without regard to all the issues in the case. He should conduct the balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all the issues, taking them all into account; Long v. Tolchard & Sons Ltd., per Roch LJ at P26.
vi) Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery. In Stubbings v. Webb, for example, the matter was dealt with by the master and the judge as a preliminary issue on affidavit evidence, without cross-examination but with the benefit of discovery. As Bingham LJ commented when the matter was before the Court of Appeal, at 202H-203A:
"This produces an unusual situation, since the facts pleaded by the plaintiff cannot for purposes of this proceeding be assumed to be true, and they are not common ground. In particular, and this must be emphasised, the Webbs deny the allegations against them. We must, it would seem, like the judge, draw such provisional inferences from the evidence before us as appear to be fair."
It may not always be feasible or produce savings in time and cost for the parties to deal with the matter by way of preliminary hearing, but a judge should strain to do so wherever possible.
vii) Where a judge determines the section 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.
(viii) Where a judge has assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, he should keep in mind in balancing the respective prejudice to the parties that the more cogent the claimant's case the greater the prejudice to the defendant in depriving him of the benefit of the limitation period. As Parker LJ showed in Hartley v. Birmingham City District Council [1992] 213, CA, at 224d-g, such a finding is usually neutral on the balance of prejudice:
" … in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff's case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied. …
…. As the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend."
We should not leave those remarks of Parker LJ without noting that they were qualified in Nash v. Eli Lilly & Co, at 804E, where this Court said that there could be instances of weak claims where disapplication of the limitation provision could cause defendants considerable prejudice in putting them to the trouble and expense of successfully defending them and then not being able to recover costs against impecunious claimants."
i) As to (ii), the exceptional indulgence point, the exercise of the discretion is only exceptional because otherwise the claim would be time-barred. The discretion is wide (paragraph 20).
ii) As to (vi), namely the desirability of determining limitation as a preliminary issue, there would be many cases where it would not be feasible to determine limitation as a preliminary issue (paragraph 21), Lord Clarke of Stone-cum-Ebony MR, who gave the judgment of the court, continued:
" … 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 section 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. …"
iii) As to (viii), referring to the judgments in the Cain case, Parker LJ was intending to say "that the prejudice to the defendant of losing the limitation defence is not the relevant prejudice to be addressed. The prejudice to be addressed is that which affects the defendant's ability to defend."
"20. When this court observed that the judge must decide the issue on the exercise of the discretion under s.33 before reaching the conclusions on liability, it was enjoining a judge to decide the s.33 question on the basis, not of the finding that the abuse had occurred, but on an overall assessment, including the cogency of the evidence and the potential effect of the delay on it."
"… on the whole I found him to be a credible witness and, generally, I accept his account of the history supported as it is, to an extent, by other evidence including the convictions of Father Laundy. However, I do find that the claimant, whilst on the whole a truthful witness, had and has a tendency to embellish and exaggerate details of events when describing them so as to emphasise the points he was and is seeking to make."
"[JL visited] Father Laundy of his own volition on a regular basis knowing that such visits would be likely to involve the type of sexual activity … that he had become used to."
"Father Laundy cynically created the claimant's trust which led to the acceptance of the sexual act. The claimant allowed it to happen. He submitted to what Father Laundy was doing and was prepared to go along with it. That in my judgment does not amount to consent."
In dealing with causation the judge noted that the arrest and conviction of Fr Laundy,
" … caused considerable emotional upset … with feelings of guilt, complicity and betrayal. All those emotions are no doubt intensified because of the consensual nature of the relationship. Any person in a consensual relationship is bound to experience a deep sense of betrayal when they realise that the very foundation of the relationship was due to manipulation and abuse. I also accept that so important was the relationship to the claimant that he felt a deep sense of guilt about having given a statement to the police."
Over many years, JL's problems were largely the consequence of drink into which he descended again in 2007 for reasons unconnected with the abuse which had occurred in his pre-university years. The judge did not discount the possibility that the sexual abuse may have been a factor in his renewed drinking (there had been a longstanding problem) but it was not significant. He continued:
"I accept, however, that it was at Lifeworks the abuse and the effects of it were identified and discussed (amongst other things), but I am not persuaded that the abuse had a significant impact on his need to attend Lifeworks in the first place."
After a careful review of the expert evidence, the judge rejected the suggestion that JL's personal difficulties were the result of the abuse.
"I take into account the evidence that I have heard and seen and what evidence might have been available had the trial taken place earlier. In my opinion the convictions of Father Laundy are important. There is no doubt that the court would have been in a position to make more confident findings about the correctness of those convictions if it had heard evidence from Father Laundy. Whether that would have assisted the defendants is not the point. … The reality is that the defendants faced a heavy evidential burden in displacing the factual basis of the convictions. The extent to which Father Laundy's evidence would have assisted in that is unknown.
I find the arguments to be finely balanced in this case, the reasons for the delay in this case are on the whole understandable given the claimant's psychological state and that it was not until he underwent the Lifeworks therapy that he felt able to address the issues and make a claim. On the other hand, the effect of the delay on the cogency of the evidence is clear given the lapse of time since the events in question and the death of Father Laundy. I reach my conclusion having heard the evidence that was presented and acknowledging the evidence I have not had. In all the circumstances, and given the nature of the case, I consider that it is both just and equitable for this action to proceed against both defendants. I therefore direct that the provisions of section 11 of the 1980 Act should not apply to this action."
Conclusion
Sir Ernest Ryder, Senior President of Tribunals
Lord Justice Lewison
"vii) Where a judge determines the section 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." (Emphasis added)