Child Abuse Law
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AB AND OTHERS V NUGENT CARE SOCIETY Unreported 16th July 2010 Mr Justice Irwin 
 
FACTS:- 
 
This was a group action, where an application had been made for a Group Litigation Order in July 2002 in respect of former residents of the St George’s Children’s Home in the Manchester High Court. In April 2004 the application was approved and then in October 2004, a case management conference took place. An application was made by the Defendants for limitation to be heard by way of preliminary issue, which was heard on the 25th April 2005 and granted by the judge. However the trial on preliminary issue was stopped because of the presence of other group litigation. The Claimant now said that the order should be varied.  
 
JUDGEMENT:- 

Justice Irwin said that there had been two developments since the decision made in 2005. Firstly those responsible for the management and employment of staff within children’s homes were broadly speaking vicariously liable for assault that arose out of that employment. Secondly assaults of this kind were to be viewed for limitation purposes as personal injury claims arising out of a breach of duty and consequently fell under the exercise of the court’s discretion under Section 33 of the Limitation Act 1980.  
 
Following those two developments, the Court of Appeal in the case of AB and Others v Nugent Care Society [2009] EWCA Civ 827 reviewed the approach to limitation and the trial of limitation issues. Irwin J said that on balance, he would start with the intention to try limitation and liability together. The reasons were as follows:- 
 
  • Issues of establishing primary fact, given the focus of these cases on the nature and extent of the abuse was closely allied to the considerations of fact which needed to be established for the purposes of making a determination under Section 33.  
  • There was no long the prospect of an expensive trial of system points designed to show that the abuse flowed from a failure of supervision or rigorous system ensuring quality of care and supervision.  
Thirdly it was normally preferable to avoid compelling those who had been abused from giving evidence twice.  

At the time of the judgement in 2005, the court had the decision of the Court of Appeal in the case of  KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85. The then prevailing view was for a preliminary issue.  
 
The court was entitled to vary a case management decision under CPR 3.1(7) and 3.1.9 as circumstances changed or as the court put it in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC Ch 1740 where there was some material change in circumstances.  
 
In effect the court was starting again with this group action, therefore the decision made by the judge in 2005 would be varied and the trial would be on issues of limitation, liability and causation.

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