BATLEY AND OTHERS V ROE, ROE AND NORFOLK COUNTY COUNCIL 22ND SEPTEMBER 2011 IN THE NORWICH COUNTY COURT
FACTS:-
The Claimants were all children abused by the First and Second Defendants. Two of them had been placed with the first two Defendants, by the Third Defendant, Norfolk County Council. The other two were an adoptive daughter and a natural daughter.
All had suffered either sexual or physical abuse from the First and Second Defendants, or both. Primary limitation on their claims had expired in various years, from 1988 to 1998.
The two Claimants placed by Norfolk County Council claimed that the council was negligent in placing them with the first two Defendants and in failing to remove them.
In about 2007 the First and Second Defendants were prosecuted and convicted for child cruelty and sexual abuse.
JUDGEMENT:-
His Honour Judge Yelton referred to the following cases:-
· A v Hoare [2008] UKHL 6
· Horton v Sadler [2006] UKHL 27
· AB and Others v Nugent Care society [2009] EWCA Civ 827
· Cain v Francis [2008] EWCA Civ 1451
Judge Yelton also referred to the provisions of section 33 of the Limitation Act 1980. It seemed that the important period of delay was prior to the police investigation in 2005 to 2006. The Claimants had all instructed solicitor soon after the criminal convictions, and during the police investigation had been discouraged by the police from bringing civil claims. The proceedings were eventually served in 2010. There was no evidence that prior to the convictions, they had any knowledge that such a claim could be brought, and they all said that they did not. That was entirely different from the question of when the date of knowledge occurred, which had to be calculated by impersonal standards.
The medical evidence from both sides showed that all of the Claimants had experienced severe psychiatric problems. Judge Yelton concluded that the very substantial delay had been for excusable and understandable reasons.
However it was necessary to consider whether the respective Defendants had been so prejudiced by the delay that the limitation bar should not be disapplied.
First of all the First and Second Defendants had been convicted. Secondly in relation to quantum, the assessment of damages would not be an easy task however this would not be impossible and in some respects it was easier now, when one could see what had actually happened to the Claimants over a prolonged period of time.
The time bar should be disapplied in relation to the First and Second Defendants.
However in relation to the Third Defendant, whilst Norfolk County Council had full and complete records, one important witness, a fostering officer stated that she could not recall the Claimants at all. She had not been shown any papers, whereas other witnesses having seen the papers, did have a good recollection.
The Defendant’s medical expert said that the Claimants might not have an accurate recollection of what occurred in their childhood, but that was answered partly by the fact that the Second Defendant had been convicted of cruelty in relation to both the Claimants who sought to proceed against the council.
There were periods where the social workers in question could not be traced. Judge Yelton said that some gaps are inevitable and that the existence of comprehensive written records for the whole of the period concerned outweighed the absence of some of the social workers.
It had also been argued that there was no prejudice to the Claimants by not being allowed to proceed against the Third Defendant, since they had a cast iron claim against the First and Second Defendants. However there was no evidence that any judgment would actually be met.
The case required the court to balance the prejudice, and to ask whether the delay had arisen for so excusable a reason, that, looking at the matter in the round, on balance it was fair and just that the action should proceeded. Judge Yelton said that these claims should be allowed to proceed.
FACTS:-
The Claimants were all children abused by the First and Second Defendants. Two of them had been placed with the first two Defendants, by the Third Defendant, Norfolk County Council. The other two were an adoptive daughter and a natural daughter.
All had suffered either sexual or physical abuse from the First and Second Defendants, or both. Primary limitation on their claims had expired in various years, from 1988 to 1998.
The two Claimants placed by Norfolk County Council claimed that the council was negligent in placing them with the first two Defendants and in failing to remove them.
In about 2007 the First and Second Defendants were prosecuted and convicted for child cruelty and sexual abuse.
JUDGEMENT:-
His Honour Judge Yelton referred to the following cases:-
· A v Hoare [2008] UKHL 6
· Horton v Sadler [2006] UKHL 27
· AB and Others v Nugent Care society [2009] EWCA Civ 827
· Cain v Francis [2008] EWCA Civ 1451
Judge Yelton also referred to the provisions of section 33 of the Limitation Act 1980. It seemed that the important period of delay was prior to the police investigation in 2005 to 2006. The Claimants had all instructed solicitor soon after the criminal convictions, and during the police investigation had been discouraged by the police from bringing civil claims. The proceedings were eventually served in 2010. There was no evidence that prior to the convictions, they had any knowledge that such a claim could be brought, and they all said that they did not. That was entirely different from the question of when the date of knowledge occurred, which had to be calculated by impersonal standards.
The medical evidence from both sides showed that all of the Claimants had experienced severe psychiatric problems. Judge Yelton concluded that the very substantial delay had been for excusable and understandable reasons.
However it was necessary to consider whether the respective Defendants had been so prejudiced by the delay that the limitation bar should not be disapplied.
First of all the First and Second Defendants had been convicted. Secondly in relation to quantum, the assessment of damages would not be an easy task however this would not be impossible and in some respects it was easier now, when one could see what had actually happened to the Claimants over a prolonged period of time.
The time bar should be disapplied in relation to the First and Second Defendants.
However in relation to the Third Defendant, whilst Norfolk County Council had full and complete records, one important witness, a fostering officer stated that she could not recall the Claimants at all. She had not been shown any papers, whereas other witnesses having seen the papers, did have a good recollection.
The Defendant’s medical expert said that the Claimants might not have an accurate recollection of what occurred in their childhood, but that was answered partly by the fact that the Second Defendant had been convicted of cruelty in relation to both the Claimants who sought to proceed against the council.
There were periods where the social workers in question could not be traced. Judge Yelton said that some gaps are inevitable and that the existence of comprehensive written records for the whole of the period concerned outweighed the absence of some of the social workers.
It had also been argued that there was no prejudice to the Claimants by not being allowed to proceed against the Third Defendant, since they had a cast iron claim against the First and Second Defendants. However there was no evidence that any judgment would actually be met.
The case required the court to balance the prejudice, and to ask whether the delay had arisen for so excusable a reason, that, looking at the matter in the round, on balance it was fair and just that the action should proceeded. Judge Yelton said that these claims should be allowed to proceed.