EB v JOHN HAUGHTON [2011] EWHC 279 (QB)
FACTS:-
The Claimant was a 28 year old woman, who alleged that over a year or so in 1993 when she was 10 or 11, the Defendant subjected her to sexual assaults. These assaults including stroking her leg, fondling her chest and breasts and on one occasion causing the Claimant to undress and touching her inappropriately under the guise of a massage and inserting his finger into her vagina.
On the 24th July 2003, the Defendant pleaded guilty to indecent assault on a female under the age of 14 on the 20th May 2002. On the 3rd December 2004, the Claimant made a statement to the police as a result of which the Defendant was arrested and charged with sexual assault on the Claimant. At that time, under the binding authority of Stubbings v Webb [1993] AC 498 the limitation period applicable to the Claimant’s case would have expired in August 2006. In September 2006, the Defendant was acquitted of any crimes against the Claimant and she approached solicitors. In May 2007, the Claimant made a claim for compensation from the Criminal Injuries Compensation Authority and she was awarded £1300.
On the 30th January 2008, the House of Lords gave judgment in the case of A v Hoare [2008] 1 AC 844. The House of Lords departed from Stubbings and held that the 3 years limitation period in Section 11 of the Limitation Act 1980 applied to personal injury claims. In February 2008, the Claimant’s solicitors wrote to the Defendant informing him that they had been instructed by her to seek compensation for the alleged sexual abuse set out in the letter which was that for which he had been tried.
Proceedings were issued in December 2009.
JUDGEMENT:-
Justice Slade said that there were three issues in this case, limitation, liability and quantum. The Defendant denied sexual assault although he admitted touching her appropriately and massaging her leg. The Claimant and two friends gave evidence of complaints that she had made that the Defendant had sexually assaulted her. The Defendant and his wife gave evidence.The Defendant said that he had pleaded guilty to sexual assault on another girl as a result of bad advice. The only medical report came from Professor Anthony Maden, a psychiatrist who was essentially supportive of the Claimant’s allegations and her reasons for delay in coming forward.
Slade J considered sections 11, 28 and 33 of the Limitation Act 1980. Section 33 set out the factors to be considered by the court in exercising its discretion to overturn limitation. She also considered the following cases:-
A v Hoare (see above)
AB and others v Nugent Care Society [2010] 1 WLR 516
KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441
Raggett v Society of Jesus Trust of 1979 for the Governors of Preston Catholic College [2010] AER(D) 116
Cain v Francis and McKay v Hanlani [2009] QB 754
The following factors were important in this case.
In relation to the Claimant’s reasons for delay, she had only decided to sue the Defendant once he had been acquitted of the allegations made against him. That was in September 2006. She was then correctly advised that prior to the case of A v Hoare her claim was time barred and it was reasonable for her to await the determination of that case in the House of Lords. A letter of claim was sent to the Defendant by her solicitors in February 2008 but no proceedings were issued until December 2009. This was less excusable and explicable.
Over a year had elapsed after the Defendant’s acquittal before the Defendant was notified by the Claimant’s solicitors of the possibility of civil proceedings being taken out against him. However it was not suggested that any evidence had been lost as a result. Furthermore it had not been suggested that evidence on causation of damage had been adversely affected by the passage of time. Therefore the Defendant would suffer little or no prejudice if discretion were exercised to extend the limitation period. Whilst the authorities did not go quite as far as to say that lack of prejudice trumped all other considerations, nonetheless this factor was to be give considerable weight. Therefore Slade J would exercise her discretion to allow this claim to proceed.
Slade J now turned to the allegations of assault. The relevant case on proof was that of Re H (minors) (Sexual Abuse : Standard of Proof) [1996] AC 563.
In relation to the touching in the case, there was no good reason for the Claimant to invent this allegation. Again in relation to fondling the Claimant, Slade J said that she preferred the Claimant’s account. In relation to the massage, the Defendant said that he could not have done this as he had injured his knee. This was at odds with his medical records, which showed him to have made a good recovery from a knee injury. In addition he had been convicted of a similar offence against another girl, and under Section 11(2) of the Civil Evidence Act 1968 he was taken to have committed that offence. The circumstances of the criminal offence were strikingly similar to that alleged by the Claimant to have been perpetrated on her by the Defendant in 1993. Therefore in these proceedings, such evidence was admissible. Therefore this allegation was proven.
In relation to quantum, Slade J said that the first two types of sexual assault were at the lower end of the scale of sexual assault. The massage which included digital penetration of the vagina was more serious. There had also been a betrayal of trust on an 11 year old. Slade J would award the sum of £28,000 in general damages together with interest of £653. Therapy would be awarded in the sum of £3,640. In relation to aggravated damages, Slade J referred to the case of Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065 where Moore-Bick LJ cited Lord Woolf’s words in Thompson v Commissioner of Police of the Metropolis [1999] QB 498. Aggravated damages were primarily to be awarded to compensate the Claimant for injury to his proper pride and dignity and the consequences of being humiliated.
However Slade J would not award aggravated damages here. Whilst the Claimant had to give evidence at the Defendant’s criminal trial, it would not be appropriate to regard contesting the allegations made by the Claimant as a factor justifying the award of aggravated damages. In addition, the most serious assault that the Defendant perpetrated on the Claimant was not repeated.
FACTS:-
The Claimant was a 28 year old woman, who alleged that over a year or so in 1993 when she was 10 or 11, the Defendant subjected her to sexual assaults. These assaults including stroking her leg, fondling her chest and breasts and on one occasion causing the Claimant to undress and touching her inappropriately under the guise of a massage and inserting his finger into her vagina.
On the 24th July 2003, the Defendant pleaded guilty to indecent assault on a female under the age of 14 on the 20th May 2002. On the 3rd December 2004, the Claimant made a statement to the police as a result of which the Defendant was arrested and charged with sexual assault on the Claimant. At that time, under the binding authority of Stubbings v Webb [1993] AC 498 the limitation period applicable to the Claimant’s case would have expired in August 2006. In September 2006, the Defendant was acquitted of any crimes against the Claimant and she approached solicitors. In May 2007, the Claimant made a claim for compensation from the Criminal Injuries Compensation Authority and she was awarded £1300.
On the 30th January 2008, the House of Lords gave judgment in the case of A v Hoare [2008] 1 AC 844. The House of Lords departed from Stubbings and held that the 3 years limitation period in Section 11 of the Limitation Act 1980 applied to personal injury claims. In February 2008, the Claimant’s solicitors wrote to the Defendant informing him that they had been instructed by her to seek compensation for the alleged sexual abuse set out in the letter which was that for which he had been tried.
Proceedings were issued in December 2009.
JUDGEMENT:-
Justice Slade said that there were three issues in this case, limitation, liability and quantum. The Defendant denied sexual assault although he admitted touching her appropriately and massaging her leg. The Claimant and two friends gave evidence of complaints that she had made that the Defendant had sexually assaulted her. The Defendant and his wife gave evidence.The Defendant said that he had pleaded guilty to sexual assault on another girl as a result of bad advice. The only medical report came from Professor Anthony Maden, a psychiatrist who was essentially supportive of the Claimant’s allegations and her reasons for delay in coming forward.
Slade J considered sections 11, 28 and 33 of the Limitation Act 1980. Section 33 set out the factors to be considered by the court in exercising its discretion to overturn limitation. She also considered the following cases:-
A v Hoare (see above)
AB and others v Nugent Care Society [2010] 1 WLR 516
KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441
Raggett v Society of Jesus Trust of 1979 for the Governors of Preston Catholic College [2010] AER(D) 116
Cain v Francis and McKay v Hanlani [2009] QB 754
The following factors were important in this case.
- The Defendant did not deny that he fondled the Claimant’s leg, or that he put his arms either side of her and put his body against her back.
- The Claimant had a credible insistence that the incident involving the massage had occurred and she had mentioned the sexual assaults to others soon afterwards.
- The Defendant’s conviction for sexually abusing another girl had strikingly similar features to the offences described by the Claimant.
- The Defendant had said that he could not have massaged the Claimant because he had a knee injury, but his own medical records referred to his enjoying exercise.
- The Defendant had alleged that the Claimant had only fabricated these allegations because she blamed him for her mother’s bankruptcy. However he did not mention this reason or other reasons as to why the Claimant was making these allegations to the police when they arrested him.
- There was no challenge to the report of Professor Maden.
In relation to the Claimant’s reasons for delay, she had only decided to sue the Defendant once he had been acquitted of the allegations made against him. That was in September 2006. She was then correctly advised that prior to the case of A v Hoare her claim was time barred and it was reasonable for her to await the determination of that case in the House of Lords. A letter of claim was sent to the Defendant by her solicitors in February 2008 but no proceedings were issued until December 2009. This was less excusable and explicable.
Over a year had elapsed after the Defendant’s acquittal before the Defendant was notified by the Claimant’s solicitors of the possibility of civil proceedings being taken out against him. However it was not suggested that any evidence had been lost as a result. Furthermore it had not been suggested that evidence on causation of damage had been adversely affected by the passage of time. Therefore the Defendant would suffer little or no prejudice if discretion were exercised to extend the limitation period. Whilst the authorities did not go quite as far as to say that lack of prejudice trumped all other considerations, nonetheless this factor was to be give considerable weight. Therefore Slade J would exercise her discretion to allow this claim to proceed.
Slade J now turned to the allegations of assault. The relevant case on proof was that of Re H (minors) (Sexual Abuse : Standard of Proof) [1996] AC 563.
In relation to the touching in the case, there was no good reason for the Claimant to invent this allegation. Again in relation to fondling the Claimant, Slade J said that she preferred the Claimant’s account. In relation to the massage, the Defendant said that he could not have done this as he had injured his knee. This was at odds with his medical records, which showed him to have made a good recovery from a knee injury. In addition he had been convicted of a similar offence against another girl, and under Section 11(2) of the Civil Evidence Act 1968 he was taken to have committed that offence. The circumstances of the criminal offence were strikingly similar to that alleged by the Claimant to have been perpetrated on her by the Defendant in 1993. Therefore in these proceedings, such evidence was admissible. Therefore this allegation was proven.
In relation to quantum, Slade J said that the first two types of sexual assault were at the lower end of the scale of sexual assault. The massage which included digital penetration of the vagina was more serious. There had also been a betrayal of trust on an 11 year old. Slade J would award the sum of £28,000 in general damages together with interest of £653. Therapy would be awarded in the sum of £3,640. In relation to aggravated damages, Slade J referred to the case of Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065 where Moore-Bick LJ cited Lord Woolf’s words in Thompson v Commissioner of Police of the Metropolis [1999] QB 498. Aggravated damages were primarily to be awarded to compensate the Claimant for injury to his proper pride and dignity and the consequences of being humiliated.
However Slade J would not award aggravated damages here. Whilst the Claimant had to give evidence at the Defendant’s criminal trial, it would not be appropriate to regard contesting the allegations made by the Claimant as a factor justifying the award of aggravated damages. In addition, the most serious assault that the Defendant perpetrated on the Claimant was not repeated.