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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors v CD [2018] EWCA Civ 2342 (23 October 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2342.html Cite as: [2018] EWCA Civ 2342, [2019] ELR 1 |
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ON APPEAL FROM THE QUEEN'S BENCH DIVISION,
LEEDS DISTRICT REGISTRY
His Honour Judge Gosnell
5DW01675
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE LEWISON
____________________
THE CATHOLIC CHILD WELFARE SOCIETY (DIOCESE OF MIDDLESBROUGH) THE TRUSTEES OF THE MIDDLESBROUGH DIOCESAN RESCUE SOCIETY TRUSTEES OF THE DE LA SALLE PROVINCIALATE |
Appellant |
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- and - |
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CD |
Respondent |
____________________
Mr Hugh Preston QC & Ms Susannah Johnson (instructed by Switalskis LLP) for the Respondent
Hearing date : 16 October 2018
____________________
Crown Copyright ©
Lord Justice Lewison:
"(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from—
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured."
"Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of [three] years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired."
"(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."
"[CD] fills his leisure time well and fairly rarely complaining of being bored or sitting around. He enjoys all outdoor activities and was fortunate enough to spend a week in the Highlands of Scotland with Brother James."
"During the week 16th to 20th July, [CD] spent a week in Scotland with Brother James. He had a great time and returned to class with work completed, seemingly benefitting from his week away."
"[CD] now seems to see St William's in a very positive light. He was unable to recall anything he disliked about the establishment and envisages remaining there until his 18th birthday."
"His Key Worker is Cathy Burke who offers [CD] a consistent and thoughtful approach to him personally. He has a trusting relationship with her and often if there are areas of anxiety on [CD's] behalf, he can express these to Cathy."
"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."
"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."
"3.3.4 [CD] told me that when allegations of sexual abuse at St William's by Brother James … came to light, he did not feel surprised since it made sense of things he had seen and experienced e.g. Brother James coming to the bedroom at a holiday location and removing one of the boys.
3.3.5 [CD] told me that he now feels bad about being covertly exploited in the above ways, although he was not aware of it at the time. As far as he can recall, he was never the subject of any overt sexual behaviour at St William's and considers that he may have had a "lucky escape"."
"One night … I was lying awake in bed. Brother James came into the bedroom where all six of us boys were sharing. He went to the bed of either [RP] or [DS] and I saw Brother James lead the boy out of the bedroom. I then fell asleep. The following morning the boy who had been led away by Brother James was back in his bed. We never spoke about this. Since that time I now believe that Brother James had led that boy away to abuse him."
"Although physical abuse is not surrounded by as many taboos as sexual abuse, it can be equally difficult for a child or young person to complain of."
"Brother James also took the Claimant from his room when he had been taken on holiday in Scotland. Brother James took [CD] to his room and raped him."
"In my previous statement I mention that on one occasion I was lying awake in bed one night when Brother James came into the bedroom and took either [RP] or [DS] out of the bedroom. I said that I thought that Brother James had abused this person. The boy that was led out of the bedroom by Brother James was in fact me. Brother James took me into his bedroom and raped me. This is the first time that I have ever disclosed this and at this point I am unable to speak further about it."
"He repeated that Brother James sexually assaulted him. I asked for more details. He says Brother James took him out of the room where they were all staying. Brother James came into the room and took him to another bedroom. There "he sexually assaulted us". I pressed for details of how the assault had begun or anything that Brother James had said. He said: "It's all a blank really". He says Brother James just sent him back to bed afterwards. He says he sexually assaulted him on only that one occasion. [Comment: the allegation was presented in general terms. He did not allege rape when speaking to me…]."
"There are serious problems for the expert arising from the fact that the material events took place over [20] years ago. Memory is not reliable over such long periods of time. Recall is an active mental process in which memories tend to become distorted with time to fit the individual's beliefs, needs and values. Both the content and the meaning of recollections often change with time. Events can and do acquire a significance years later that they did not have at the time."
"These problems with recall affect all cases but they are particularly acute in the present case because the Claimant is a highly unreliable informant with numerous convictions for dishonesty including one for perverting the course of justice."
"I found him evasive and vague when speaking about the alleged sexual abuse. His account lacked the circumstantial detail that usually accompanies such accounts. … Even allowing for shame and embarrassment the vagueness of the allegation is extreme, to the extent that he did not actually tell me he was raped and nor does he say that anywhere except in his addendum statement. I have reported on hundreds of cases of this nature but this account stands out for the vagueness of the allegation."
"The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why."
"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. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (p 255) it seems more in accord with the legislative policy that the pursuer's lost right should not be revived than that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour."
"A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant."
"The time of the notification of the claim is not one of the particular matters to which the court is required to have regard under section 33(3); although it may come in under paragraph (e). But to my mind it is an extremely important consideration, and is always so regarded by judges who have to consider these questions."
"Plaintiff A is a boy of eleven at the time of an accident in the school playground. The law allows him ten years within which to bring his claim — that is, until he is 21. If there has been no notification of the claim, it is likely that the defendants are seriously prejudiced by the delay. There can be little hope of investigating it, and memories of such witnesses that might be traced will be hopelessly unreliable. If the Writ is issued before the plaintiff is 21, the defendant has to accept this prejudice because the law, out of its concern for infants, so allows. If the Writ is issued a week after the plaintiff's 21st birthday, the prejudice to the defendant is no greater than it was if it had been issued in time. The lapse of the week has made no difference. But the law says that enough is enough; the plaintiff has had long enough; he should only be allowed to pursue his action if he can persuade the court on balance that the prejudice to him in being deprived of his right to sue is greater than that to the defendant." (Emphasis added)
"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."
"The logical fallacy which Lord Clarke MR was concerned with at [21] of the Nugent Care Society case and Auld LJ at [74(vii)] of the Bryn Alyn case was proceeding from a finding on the (necessarily partial) evidence heard that the claimant should succeed on the merits to the conclusion that it would be equitable to disapply the limitation period. That would be to overlook the possibility that, had the defendant been in a position to deploy evidence now lost to him, the outcome might have been different."
"Secondly, … 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." (Emphasis added)
"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."
"The allegation about the rape is one which is unlikely to be affected by the passage of time in terms of cogency. The Claimant did not say he could not remember it, merely that he did not like to recall it."
"I have therefore considered the contemporaneous documents and the various inconsistencies in the Claimant's evidence. I take the view that they are either explainable due to the passage of time and the Claimant's wish to suppress the memory and avoid talking about the abuse, or are insufficiently compelling to overcome my impression of the Claimant in the witness box as a witness of truth." (Emphasis added)
"I think it likely however that the Claimant has exaggerated the number of occasions when he was slapped by Brother James and Mr Hartnett due to the passage of time and the unreliability of memory for details of this nature."
"From the Defendant's point of view either Brother James is telling the truth about the incident occurring or he is not. It is not really something that either of the participants should have forgotten."
"The inability to trace Trish Monkman is unfortunate but this is probably the only missing witness who may have had something useful to say and it is difficult to know whether she would have been any easier to locate in 1999."
"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."
"On the Claimant's case he was unable to consider taking action about the abuse until he learnt others were also making a claim in 2005. I have to bear in mind that however that he would have known even at aged 18 that what had happened to him was wrong, but I have accepted his evidence that he suppressed the memory and was too embarrassed and ashamed to speak about it until he was much older and had the love and support of his wife and family."
"In effect [counsel for the claimant] submitted that even if the writ had been issued within the three years of 1992, the damage would have already been suffered by the defendants through inability to trace witnesses and get their evidence. Moreover, he submitted that proceedings would have been likely to have been stayed pending the outcome of the Phelps case. This ignores the fact that the sooner a claim is notified to a defendant the greater opportunity he will have to trace witnesses and recover documents even though the actual trial may be deferred until a test case has been determined."
"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"
"I accept that the Claimant knew enough about his cause of action on attaining majority but on his case was disabled from pursuing his claim due to the psychological effects of the abuse. He first took legal advice in 2005."
"In my judgment, in this case a fair trial can take place and it would be equitable in the circumstances to allow the claim to proceed."
"While we do not disagree with the conclusion that a fair trial would still be possible, we do think that a delay as long as this should not be brushed aside quite so readily. Although a trial might be fair, the defendant must have been disadvantaged by the passage of time as long as 16 years. If the present case had been brought in time, many of the witnesses whom the MOD would have wished to call would still have been alive and able to give evidence. That is not an insignificant feature and should have been brought into the balance when deciding the s 33 issue."
"The theoretical position has been that judges do not make or change law: they discover and declare the law which is throughout the same. According to this theory, when an earlier decision is overruled the law is not changed: its true nature is disclosed, having existed in that form all along. This theoretical position is, as Lord Reid said in the article "The Judge As Law Maker" (1972-1973) 12 J.S.P.T.L. (N.S.) 22, a fairy tale in which no one any longer believes. In truth, judges make and change the law."
"Occasionally, a judicial development of the law will be of a more radical nature, constituting a departure, even a major departure, from what has previously been considered to be established principle, and leading to a realignment of subsidiary principles within that branch of the law. Perhaps the most remarkable example of such a development is to be found in the decisions of this House in the middle of this century which led to the creation of our modern system of administrative law. It is into this category that the present case falls; but it must nevertheless be seen as a development of the law, and treated as such.
Bearing these matters in mind, the law which the judge then states to be applicable to the case before him is the law which, as so developed, is perceived by him as applying not only to the case before him, but to all other comparable cases, as a congruent part of the body of the law. Moreover when he states the applicable principles of law, the judge is declaring these to constitute the law relevant to his decision. Subject to consideration by appellate tribunals, and (within limits) by judges of equal jurisdiction, what he states to be the law will, generally speaking, be applicable not only to the case before him but, as part of the common law, to other comparable cases which come before the courts, whenever the events which are the subject of those cases in fact occurred.
It is in this context that we have to reinterpret the declaratory theory of judicial decision. We can see that, in fact, it does not presume the existence of an ideal system of the common law, which the judges from time to time reveal in their decisions. The historical theory of judicial decision, though it may in the past have served its purpose, was indeed a fiction. But it does mean that, when the judges state what the law is, their decisions do, in the sense I have described, have a retrospective effect. That is, I believe, inevitable. It is inevitable in relation to the particular case before the court, in which the events must have occurred some time, perhaps some years, before the judge's decision is made. But it is also inevitable in relation to other cases in which the law as so stated will in future fall to be applied. I must confess that I cannot imagine how a common law system, or indeed any legal system, can operate otherwise if the law is be applied equally to all and yet be capable of organic change."
i) 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 is therefore nearly 24 years. The complaint as it eventually emerged is therefore a thoroughly stale complaint.
ii) By that time the litigation had been ongoing for many years, and CD had had the benefit of legal advice since 2005.
iii) 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.
iv) CD's complaint was uncorroborated, came out of the blue in 2014 contradicted previous statements; and was at variance with contemporaneous documents.
v) On the judge's own findings the cogency of CD's evidence was itself affected by the passage of time.
vi) 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.
Lady Justice Rafferty: