AB AND OTHERS VERSUS NUGENT CARE SOCIETY: GR V WIRRAL METROPOLITAN BOROUGH COUNCIL [2009] EWCA Civ 827
FACTS:-
AB concerned four cases of historic child abuse in St Aidan’s children’s home and the issue was limitation. One of the cases concerned the issue of when the “date of knowledge” was triggered for the purposes of the Limitation Act 1980 and all concerned the issue of whether section 33 of that Act should be exercised in the Claimants’ favour. The matter initially came before Holland J, who made findings in two cases, JB and JPM and refused to exercise his discretion under section 33. However the Court of Appeal reviewed the cases in the light of A v Hoare [2008] 1 AC 844 and remitted the cases back to Mr Justice Holland. As he was unable to adjudicate, they came before Irwin J in AB and Others v Nugent Care Society [2009] EWHC 481. There were two other cases also to be decided by Irwin J, DVB and HC.
Irwin J decided that HC’s claim was time barred and he did not appeal from that decision. In relation to JPM, JB and DVB, Irwin J decided that all three had relevant knowledge for the purposes of the Limitation Act 1980 more than three years before they issued proceedings. In the cases of JPM and DB Irwin J decided that section 33 would be exercised in the Claimant’s favour. However it would not be exercised in the case of JB. DVB appealed on the knowledge point, JB appealed on the decision under Section 33 whilst the Defendant appealed in the cases of JPM and DVB.
In the case of GR, the Claimant was born on the 17th January 1964 and was aged 44. In August 1973 he was taken into care by Knowsley Borough Council at the request of his father. He was placed in a family group home where he remained (save for a two week period in another home) until November 1976. He was then returned to the care of his mother. Some 18 months after his arrival, the Claimant was subjected to regular sexual abuse at the hands of Mr Robbins, who was employed from 1975 until 1985 as an escort officer. He did not tell anyone about the abuse.
The Claimant having returned to his mother, left school at 15 and found work. He married at the age of 25 and he and his wife had a baby girl in 1999. In November 2000 he was contacted by police in relation to another home, and he mentioned the abuse to the officers. He mentioned it to his wife two weeks later. She was a local solicitor specialising in childcare. The disclosure put strain on his marriage and in early 2001 he separated from his wife and they later divorced. He was also unable to return to work and resigned from his employment after being off for over a year in January 2002.
In August 2002, the Claimant sent a letter before action to the Defendants and a claim form was issued on the 20th June 2003. The case was stayed whilst the appeal in A v Hoare and Others [2008] 2 WLR 311 was awaited. Then in June 2008, it was listed for a preliminary hearing on limitation. Judge Main QC exercised his discretion pursuant to Section 33 of the Limitation Act 1980 to allow the action to proceed but found that the Claimant had knowledge for the purposes of the Limitation Act 1980 by his sixteenth birthday.
The cases of JPM, JB and DVB in A and Other v Nugent Care Society and GR v Wirral now came before the Court of Appeal.
JUDGMENT
Lord Clarke said that it was the Defendant’s case in the Nugent Care Society cases that the relevant limitation statute was the Limitation Act 1939 but it was common ground that there was no distinction between the relevant provisions of that Act and the Limitation Act 1980.
Lord Clarke considered the case of KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 which considered the exercise of discretion pursuant to Section 33 of the Limitation Act 1980. He also considered the case of A v Hoare. There were two critical points of distinction between those cases. In KR the evidence had to cover the issue of systemic negligence in the relevant home. Now that the extendable three year period applied to actions based on assault, no such analysis was required. The Claimant only had to show the following:-
· That he was assaulted
· That the Defendant was vicariously responsible for the abuse
· That the abuse caused the alleged damage
· Quantum
The second point of distinction was that the exercise under Section 33 was significantly different from beforehand. In Hoare Lord Hoffman had said that the right place to consider the question of whether the Claimant, taking into account his psychological state could reasonably have been expected to institute proceedings was under Section 33.
The discretion under Section 33 was broad and it did not focus solely on whether there had been prejudice to the Defendant. In Hoare Lord Carswell had said that there now required to be a more liberal approach to the exercise of the discretion than had been the case.
However the starting points on section 33 from KR v Bryn Alyn remained valid. It was correct to describe the exercise of the discretion as an exceptional indulgence because otherwise his claim would be time barred. However it was only exceptional for that reason. The discretion was wide and unfettered.
As to whether there should be a preliminary hearing on limitation, there were now likely to be many cases in which a judge would consider that it was not feasible to decide the issues simply by reference to the pleadings and written witness statements. However where the judge determined the Section 33 application along with the substantive issues, 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.
At the same time, a weak case might persuade the court not to exercise discretion as was seen in the case of Nash v Eli Lilly & Co. [1993] 1 WLR 782.
In considering the exercise of discretion, the court should consider what evidence might have been available to the Defendant is a trial had taken place earlier or it had learned of the claim earlier.
Every effort should be made to ensure that the Claimant did not have to give evidence twice.
Lord Clarke then considered the procedural background to the case, before going on to the individual circumstances of each case.
JPM
Lord Clarke said that Irwin J should not have made a finding that the abuse occurred, without considering, in the context of Section 33, what effect the passage of time would have on the question of whether the Defendant was prejudiced.
However Irwin J had identified three factors that had inhibited JPM from proceeding, firstly the Claimant’s hope that he could cope with the effects of abuse by avoidance and alcohol. Secondly the inhibitions as a result of the abuse and its consequences and thirdly his lack of interest in compensation. Lord Clarke said that these seemed to be compelling reasons for exercising Section 33 in the Claimant’s favour. The problems establishing systemic negligence now fell away following the case of A v Hoare.
No inferences would be drawn that were adverse to the Defendant based upon any supposed conduct or lack of it, in previous investigations.
In relation to causation and quantum, Lord Clarke said that at trial, the judge would have the benefit of evidence of both medical experts. There was no reason to think that the judge would not be able to reach a fair conclusion as to the state of JPM and as to the contribution, for which the Defendant was responsible.
Whilst the Court of Appeal did not accept all of Irwin J’s conclusions, they would not disturb his decision to apply section 33 in JPM’s favour.
JB
Again Irwin J had made the mistake of holding that abuse was established without considering, in the context of Section 33 what effect the passage of time would have on the question of whether the Defendant was prejudiced. He should have considered the problems facing the Defendant in resisting JB’s claim. Both of the alleged abusers were dead, as were other crucial witnesses. The file relating to the investigation of one of the abusers had been destroyed and the Claimant’s statement to the police was inconsistent with his civil statement.
The position on causation was also much more problematic that that of JPM. In addition, the abuse was not as serious and it was, in the judgement of Lord Clarke relevant to have regard to the question of whether it would be reasonable and proportionate in all the circumstances to permit the Claimant to proceed, notwithstanding the difficulties which the passage of time would cause for the Defendant.
Apart from the mistake on the finding of abuse, the Court of Appeal would not disturb the judgement of Irwin J to refuse to exercise Section 33 in JB’s favour.
DVB
Irwin J had cited a number of reasons in favour of exercising Section 33 in DVB’s favour. His conclusions were:-
· His abuser pleaded guilty to charges of sexual abuse, although DVB was not one of the complainants
· DVB had relevant knowledge for the purposes of the Limitation Act 1980 soon after the abuse
· There were good reasons for delay
· The issues on causation were limited
· It was unlikely that the convicted abuser would be called to give evidence
· There was no relevant conduct on the part of the Defendant within Section 33(3)(c) and no question of disability.
· Although damages would be limited, this was not trivial abuse although it was a single incident.
· In the circumstances it was both proportionate and equitable to permit this case to proceed.
Therefore the Court of Appeal would agree that section 33 should be exercised in DVB’s favour.
GR v Wirral
Lord Clarke now came to the case of GR v Wirral. He noted that the Claimant was no longer proceeding with a case in negligence against the Defendant. He considered the judge’s points on Section 33. The judge had concluded that, whilst it would not be fair to allow the Claimant to continue to advance allegations of negligence against the Defendant, the same was not true of the allegations of sexual abuse. Lord Clarke said that the judge had correctly stated the principles, he had then weighed the various factors one way and the other. That was pre-eminently a matter for the judge and not the Court of Appeal.
It did appear that in due course, more material would be available from the Defendants. Therefore the judge was entitled to reach the conclusion that he did, and that the Court of Appeal should not interfere.
Date of knowledge
Both DVB and GR had failed in relation to the issue of “date of knowledge” for the purposes of the Limitation Act 1980. Lord Clarke considered the caselaw and noted that Lord Hoffman had said in A v Hoare that the court should adopt a “practical and relatively unsophisticated approach.” The Court of Appeal would uphold the findings of Irwin J on this issue. As regards the case of DVB, Irwin J was entitled to find that he had knowledge of significant injury in the time immediately after the single event upon which his claim was based. As regards the case of GR, the trial judge was, if anything, too generous to the Claimant when he fixed the date of knowledge to his sixteenth birthday.
FACTS:-
AB concerned four cases of historic child abuse in St Aidan’s children’s home and the issue was limitation. One of the cases concerned the issue of when the “date of knowledge” was triggered for the purposes of the Limitation Act 1980 and all concerned the issue of whether section 33 of that Act should be exercised in the Claimants’ favour. The matter initially came before Holland J, who made findings in two cases, JB and JPM and refused to exercise his discretion under section 33. However the Court of Appeal reviewed the cases in the light of A v Hoare [2008] 1 AC 844 and remitted the cases back to Mr Justice Holland. As he was unable to adjudicate, they came before Irwin J in AB and Others v Nugent Care Society [2009] EWHC 481. There were two other cases also to be decided by Irwin J, DVB and HC.
Irwin J decided that HC’s claim was time barred and he did not appeal from that decision. In relation to JPM, JB and DVB, Irwin J decided that all three had relevant knowledge for the purposes of the Limitation Act 1980 more than three years before they issued proceedings. In the cases of JPM and DB Irwin J decided that section 33 would be exercised in the Claimant’s favour. However it would not be exercised in the case of JB. DVB appealed on the knowledge point, JB appealed on the decision under Section 33 whilst the Defendant appealed in the cases of JPM and DVB.
In the case of GR, the Claimant was born on the 17th January 1964 and was aged 44. In August 1973 he was taken into care by Knowsley Borough Council at the request of his father. He was placed in a family group home where he remained (save for a two week period in another home) until November 1976. He was then returned to the care of his mother. Some 18 months after his arrival, the Claimant was subjected to regular sexual abuse at the hands of Mr Robbins, who was employed from 1975 until 1985 as an escort officer. He did not tell anyone about the abuse.
The Claimant having returned to his mother, left school at 15 and found work. He married at the age of 25 and he and his wife had a baby girl in 1999. In November 2000 he was contacted by police in relation to another home, and he mentioned the abuse to the officers. He mentioned it to his wife two weeks later. She was a local solicitor specialising in childcare. The disclosure put strain on his marriage and in early 2001 he separated from his wife and they later divorced. He was also unable to return to work and resigned from his employment after being off for over a year in January 2002.
In August 2002, the Claimant sent a letter before action to the Defendants and a claim form was issued on the 20th June 2003. The case was stayed whilst the appeal in A v Hoare and Others [2008] 2 WLR 311 was awaited. Then in June 2008, it was listed for a preliminary hearing on limitation. Judge Main QC exercised his discretion pursuant to Section 33 of the Limitation Act 1980 to allow the action to proceed but found that the Claimant had knowledge for the purposes of the Limitation Act 1980 by his sixteenth birthday.
The cases of JPM, JB and DVB in A and Other v Nugent Care Society and GR v Wirral now came before the Court of Appeal.
JUDGMENT
Lord Clarke said that it was the Defendant’s case in the Nugent Care Society cases that the relevant limitation statute was the Limitation Act 1939 but it was common ground that there was no distinction between the relevant provisions of that Act and the Limitation Act 1980.
Lord Clarke considered the case of KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 which considered the exercise of discretion pursuant to Section 33 of the Limitation Act 1980. He also considered the case of A v Hoare. There were two critical points of distinction between those cases. In KR the evidence had to cover the issue of systemic negligence in the relevant home. Now that the extendable three year period applied to actions based on assault, no such analysis was required. The Claimant only had to show the following:-
· That he was assaulted
· That the Defendant was vicariously responsible for the abuse
· That the abuse caused the alleged damage
· Quantum
The second point of distinction was that the exercise under Section 33 was significantly different from beforehand. In Hoare Lord Hoffman had said that the right place to consider the question of whether the Claimant, taking into account his psychological state could reasonably have been expected to institute proceedings was under Section 33.
The discretion under Section 33 was broad and it did not focus solely on whether there had been prejudice to the Defendant. In Hoare Lord Carswell had said that there now required to be a more liberal approach to the exercise of the discretion than had been the case.
However the starting points on section 33 from KR v Bryn Alyn remained valid. It was correct to describe the exercise of the discretion as an exceptional indulgence because otherwise his claim would be time barred. However it was only exceptional for that reason. The discretion was wide and unfettered.
As to whether there should be a preliminary hearing on limitation, there were now likely to be many cases in which a judge would consider that it was not feasible to decide the issues simply by reference to the pleadings and written witness statements. However where the judge determined the Section 33 application along with the substantive issues, 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.
At the same time, a weak case might persuade the court not to exercise discretion as was seen in the case of Nash v Eli Lilly & Co. [1993] 1 WLR 782.
In considering the exercise of discretion, the court should consider what evidence might have been available to the Defendant is a trial had taken place earlier or it had learned of the claim earlier.
Every effort should be made to ensure that the Claimant did not have to give evidence twice.
Lord Clarke then considered the procedural background to the case, before going on to the individual circumstances of each case.
JPM
Lord Clarke said that Irwin J should not have made a finding that the abuse occurred, without considering, in the context of Section 33, what effect the passage of time would have on the question of whether the Defendant was prejudiced.
However Irwin J had identified three factors that had inhibited JPM from proceeding, firstly the Claimant’s hope that he could cope with the effects of abuse by avoidance and alcohol. Secondly the inhibitions as a result of the abuse and its consequences and thirdly his lack of interest in compensation. Lord Clarke said that these seemed to be compelling reasons for exercising Section 33 in the Claimant’s favour. The problems establishing systemic negligence now fell away following the case of A v Hoare.
No inferences would be drawn that were adverse to the Defendant based upon any supposed conduct or lack of it, in previous investigations.
In relation to causation and quantum, Lord Clarke said that at trial, the judge would have the benefit of evidence of both medical experts. There was no reason to think that the judge would not be able to reach a fair conclusion as to the state of JPM and as to the contribution, for which the Defendant was responsible.
Whilst the Court of Appeal did not accept all of Irwin J’s conclusions, they would not disturb his decision to apply section 33 in JPM’s favour.
JB
Again Irwin J had made the mistake of holding that abuse was established without considering, in the context of Section 33 what effect the passage of time would have on the question of whether the Defendant was prejudiced. He should have considered the problems facing the Defendant in resisting JB’s claim. Both of the alleged abusers were dead, as were other crucial witnesses. The file relating to the investigation of one of the abusers had been destroyed and the Claimant’s statement to the police was inconsistent with his civil statement.
The position on causation was also much more problematic that that of JPM. In addition, the abuse was not as serious and it was, in the judgement of Lord Clarke relevant to have regard to the question of whether it would be reasonable and proportionate in all the circumstances to permit the Claimant to proceed, notwithstanding the difficulties which the passage of time would cause for the Defendant.
Apart from the mistake on the finding of abuse, the Court of Appeal would not disturb the judgement of Irwin J to refuse to exercise Section 33 in JB’s favour.
DVB
Irwin J had cited a number of reasons in favour of exercising Section 33 in DVB’s favour. His conclusions were:-
· His abuser pleaded guilty to charges of sexual abuse, although DVB was not one of the complainants
· DVB had relevant knowledge for the purposes of the Limitation Act 1980 soon after the abuse
· There were good reasons for delay
· The issues on causation were limited
· It was unlikely that the convicted abuser would be called to give evidence
· There was no relevant conduct on the part of the Defendant within Section 33(3)(c) and no question of disability.
· Although damages would be limited, this was not trivial abuse although it was a single incident.
· In the circumstances it was both proportionate and equitable to permit this case to proceed.
Therefore the Court of Appeal would agree that section 33 should be exercised in DVB’s favour.
GR v Wirral
Lord Clarke now came to the case of GR v Wirral. He noted that the Claimant was no longer proceeding with a case in negligence against the Defendant. He considered the judge’s points on Section 33. The judge had concluded that, whilst it would not be fair to allow the Claimant to continue to advance allegations of negligence against the Defendant, the same was not true of the allegations of sexual abuse. Lord Clarke said that the judge had correctly stated the principles, he had then weighed the various factors one way and the other. That was pre-eminently a matter for the judge and not the Court of Appeal.
It did appear that in due course, more material would be available from the Defendants. Therefore the judge was entitled to reach the conclusion that he did, and that the Court of Appeal should not interfere.
Date of knowledge
Both DVB and GR had failed in relation to the issue of “date of knowledge” for the purposes of the Limitation Act 1980. Lord Clarke considered the caselaw and noted that Lord Hoffman had said in A v Hoare that the court should adopt a “practical and relatively unsophisticated approach.” The Court of Appeal would uphold the findings of Irwin J on this issue. As regards the case of DVB, Irwin J was entitled to find that he had knowledge of significant injury in the time immediately after the single event upon which his claim was based. As regards the case of GR, the trial judge was, if anything, too generous to the Claimant when he fixed the date of knowledge to his sixteenth birthday.