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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Raggett v The Society of Jesus Trust 1929 for Roman Catholic Purposes & Anor  EWHC 909 (QB) (05 May 2009)
Cite as: (2009) 108 BMLR 147,  EWHC 909 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Patrick Raggett
|- and -
|The Society of Jesus Trust 1929 for Roman Catholic Purposes
The Governors of Preston Catholic College
(instructed by Clifton Ingram LLP) for the Claimant
Miss Kate Thirlwall QC & Mr Steven Ford
(instructed by Berrymans Lace Mawer) for the First & Second Defendants
Hearing dates: 23rd – 26th March 2009
Crown Copyright ©
The Hon. Mrs Justice Swift DBE :
a. Did the abuse occur?
b. If so, what was its nature and extent?
c. Was the claim issued beyond the primary limitation period?
d. If so, would it nonetheless be just and equitable to allow the case to proceed?
The claimant's evidence
Other witnesses' evidence of abuse
The second defendants' evidence
The claimant's progress after the abuse
The sixth form
The claimant's career after leaving the College
Continuing contact between the claimant and Father Spencer
"(The others – the super-specials – never seen by anyone and always "turned out" by me, had, unfortunately, to be 'eliminated' years later. Unfortunately – c'est la VIE)". [emphasis as in original]
He observed that his years of 'retirement' were occupied by his "camera memories". By way of postscript, he said, "As always, I've read the letter – and still send it to you".
The claimant's awareness of the abuse over the years
"Jesuit priest – Father Spencer took film of him in the shower.
Looking for the father
Captain of his own football team….
… Victim of exposure [I think this is the word] by Father Spencer"
"the deepest relationship he had with a man was with a Jesuit priest who became interested in him under the guise of football when he was about eleven years old. The Jesuit coached him at football but also abused the relationship by going on to take movie photographs of [the claimant] while he was in the shower. [The claimant] says that he was never sexually abused, but it is quite clear that he felt abused by the priest's approach to him and there is clearly a good deal of anger around this relationship".
The events of 17 April 2005
After the events of 17 April 2005
The parties' contentions about the abuse
The second defendants
Findings as to the happening and the nature and extent of the abuse
The effects of the abuse
Date of knowledge
"(1) …in sections 11 and 12 of the Act, references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -
(a) that the injury in question was significant; and
((b) (c) and (d) are not relevant for present purposes).
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
((3) is not relied upon in this case)".
"I respectfully think that the notion of the test being partly objective and partly subjective is somewhat confusing. Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally "subjective" in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed "objective" knowledge under section 14(3). But the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would "reasonably" have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment….".
"However artificial it may seem to pose the question in this context, section 14 requires the court, on a case by case basis to ask whether such an already damaged child would reasonably turn his mind to litigation as a solution to his problem".
"This approach treats the statute as if it had said that time should run from the date on which it would have been reasonable to expect the claimant to institute proceedings. If it had said that, the question posed in Bryn Alyn would have been correct. But section 14 makes time run from when the claimant has knowledge of certain facts, not from when he could have been expected to take certain steps. Section 14(2) does no more than define one of the facts by reference to a standard of seriousness".
"Section 14(2) is simply a standard of seriousness applied to what the claimant knew or must be treated as having known. It involves no inquiry into what the claimant ought to have done. A conclusion that the injury would reasonably have been considered sufficiently serious to justify the issue of proceedings implies no finding that the claimant ought reasonably to have issued proceedings. He may have had perfectly good reasons for not doing so. It is a standard to determine one thing and one thing only, namely whether the injury was sufficiently serious to count as significant".
"…deals with that question under section 33, which specifically says in subsection (3)(a) that one of the matters to be taken into account in the exercise of the discretion is "the reasons for … the delay on the part of the plaintiff".
"The 'injury in question' for the purpose of section 14 must be the injury which the claimant knows about at the material time. The initial purpose of these provisions was to assist a claimant who did not know at the time that he had suffered any injury at all and only discovers that he has been injured years after the tort was committed. However, it was plainly also the intention of Parliament to assist a claimant who knew at the time of the tort that he had suffered a trivial (non-significant) injury but only discovered much later that he had in fact suffered a significant injury. As Bingham LJ explained in Stubbings, during the 1970s or 1980s a claimant might well not have realised that he or she was going to suffer long term psychiatric sequelae as a result of the abuse. Here, the judge found that it was not until a very late stage (in fact he said 2001) that the claimant knew that his psychiatric problems were or might be related to the abuse. Accordingly, the 'injury in question' to be considered is the immediate effect of the abuse, namely the pain, distress and humiliation which the respondent experienced at the time and remembered".
Smith LJ concluded that the allegation of anal rape by more than one man on more than one occasion could not sensibly be regarded as anything other than a significant injury.
The claimant's contentions on date of knowledge
"For the avoidance of doubt, I wish to make it plain that I am not suggesting that, in every case of abuse, the victim must be taken to have known at the time that he has suffered a significant injury. I quite accept that, where the abuse is of a less obviously intrusive nature, a different conclusion might be reached".
Mr Seabrook submitted that this was precisely the type of case that Smith LJ had in mind when making that observation.
"[the claimant] seems not to have been aware of any ill-effects on his personality and functioning until 2005… We agree it is not uncommon for adults to fail to appreciate the nature or extent of the effects of having been sexually abused until many years later, although this type of dramatic emotional catharsis (if that is what it was) is rare".
The second defendants' contentions on date of knowledge
Conclusions on date of knowledge
"42. Mr Brown QC, who appeared for the appellant, put forward an alternative argument that, even if the test which section 14(2) applied to the injury as known to the claimant was entirely impersonal, the claimant in this case could not be said to have had knowledge of his injury. This was because, according to the evidence of the claimant, supported by an expert witness, he had "blocked out his memory", or, in another metaphor which he used in evidence, put his memories "in a box with a tightly sealed lid in the attic". He was, he said, "in denial" about the psychological injuries which he had suffered.
43. I do not doubt the value of these explanations of the claimant's mental processes when it comes to an assessment of whether he could reasonably have been expected to commence proceedings. But they are difficult enough concepts to apply in that context and I do not think that section 14(2) was intended to convert them into even more difficult questions of epistemology. If one asked an expert psychologist whether the claimant "really" knew about his injuries, I expect he would say that it depends on what you mean by "know". And he might go on to say that if the question was whether he "knew" for the purposes of the Limitation Act, it would be better to ask a lawyer. In my opinion the subsection assumes a practical and relatively unsophisticated approach to the question of knowledge …"
Would it be equitable to allow the claim to proceed?
"(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."
((1A) and (2) are not relevant for these purposes)
(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.".
The claimant's contentions on the exercise of discretion
The second defendants' contentions on the exercise of discretion
Conclusions on the exercise of discretion