G V ARCHBISHOP OF BIRMINGHAM [2002] EWHC 3177 (Ch)
FACTS:-
The Claimant was born on the 20th October 1965. He was brought up by his adoptive parents, who were a devout Roman Catholic family and attended Roman Catholic schools. In 1975 he became an altar boy. He alleged that he was abused between 1975 and 1983, i.e. between the ages of 10 and 18 by a Roman Catholic priest, Father Klonan. The abuse consisted of indecent fondling and buggery on a weekly basis. The acts were committed in the church and in the priest’s car.
The Claimant left home when he was 16 years of age in 1981. He had fathered children and was abusing alcohol. In 1983 he appeared in court on criminal charges.
Primary limitation expired in October 1986.
In 1988 when he was 22 or 23, he set fire to himself, suffering serious burn injuries. He was also convicted of burglary and sentenced to imprisonment. In prison he disclosed the abuse and was interviewed by the police. Neither party had been able to obtain the statement that he gave.
There was independent evidence that in 1974, another altar boy complained to his parents that he had been assaulted by Father Klonan in the form of police witness statements from that boy and his parents. Those complaints were brought to the attention of one Father McTiernan, Father Klonan’s superior in 1974 but Father Klonan remained at his post.
In 1992, the police investigated the other boy’s complaints and they interviewed the Claimant. The Claimant said that he gave another written statement, but neither party had been able to obtain that statement. At that time, the investigating police officer suggested to the Claimant that he should make a claim to the Criminal Injuries Compensation Board, which application presented by a firm of solicitors, and was successful. He was also examined by a psychiatrist, although he refused to be examined by a doctor in relation to his claim to the CICB.
In January 1995 a criminal solicitor wrote a letter saying that he had taken over the Claimant’s case from another firm of solicitors, and seeking a report on the condition of the Claimant’s right hand and leg. This was after the Claimant had cut his arm very seriously. There was no evidence that either Mr Wilson or the other firm of solicitors were acting for him in relation to his claim to the CICB.
In 1995, the Claimant also attended a solicitor to make a statement in support of a friend, alleging abuse by a social worker. He was told by the solicitor that he could only make a claim against Father Klonan. He also consulted solicitors in 1998 in relation to access to a child of his. He said in evidence that he was never advised that he could bring a claim against the Defendants.
On the 24th July 2000, the Defendants published a press notice about Father’s Klonan. The press notice stated that the Archbishop of Birmingham had been approached by an adult about abuse by Father Klonan, who had gone to Australia and was untraced. This adult had issued proceedings and the matter was settled. The press notice stated that the Diocese profoundly regretted the abuse by Father Klonan.
A journalist known to the Claimant suggested that he contact solicitors, who took up his case. He learned in due course of the complaint that was made to Father Tiernan in 1974. The Claimant said in evidence that he found it astonishing that Father McTiernan would have allowed something like this to happen.
Proceedings were issued on the 9th October 2001. It was accepted that the Claimant was not under any disability for a period of more than 3 years immediately preceding the commencement of the action, although he was capable of being categorised as a patient from time to time.
HELD:-
Justice Leighton-Williams QC said that he had no difficulty (after considering the medical evidence of two psychiatrists, Dr Benion and Dr Rix) in concluding that the Claimant’s personality disorder had been a source of considerable problems to him.
Section 14
He considered the terms of section 14(1) of the Limitation Act 1980.
14(1)……references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts-
And knowledge that any acts or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant…..
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire-
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
Justice Leighton-Williams said that the provision in (a) to (d) of subsection (1) are cumulative. The Claimant accepted that he knew that his injury was significant, and his counsel did not rely on the issue in subsection (1)(c).
The Defendant’s counsel argued that some of the allegations made by the Claimant in his particulars of claim could have been made in 1986. Therefore the Claimant was caught by section 14(1)(b). What had happened was that the Claimant in 2000 learned not of additional facts which enabled him, for the first time to found a claim but learned of facts which enabled him to make allegations additional to those he ought to have made earlier. The Claimant’s counsel argued that section 14(1)(d) was the relevant provision. Looking at the matter realistically, the Claimant did not have relevant knowledge until he learned, in 2000, from the press notice and contact with others that Father McTiernan had been told about the abuse.
The judge referred to the cases of Dobbie v Medway Health Authority [1994] 1 WLR 1234 and Spargo v North Essex District Authority [1997] PIQR P235. Cases on limitation were very fact sensitive. The idea that, in 1986 the Claimant should have been advised to bring proceedings against the present Defendants and not just Father Klonan had an air of unreality about it. Whilst the underlying component parts of negligence-duty, breach and damage were constant, whether or not a duty existed and whether a breach had occurred was not constant but evolved with the times and the reasonable expectations of people. One should not apply the standards of today to yesterday.
It was also unreal to expect the Claimant to have sought advice on whether he had a claim against anyone other than the perpetrator, or to have sought advice on whether he had a claim against anyone other than the perpetrator each time he consulted a solicitor.
Neither counsel had discovered any case in which a claim against the church had been based on sexual abuse of children by a priest, other than the claim which prompted the Claimant to take action in 1999 or 2000. Sexual abuse had recently become a prominent news item in the United States and to a lesser extent in England and Wales. The publication of the press notice on the 24th July 2000 put a complete different picture on it.
Therefore the additional facts discovered by the Claimant in 2000 were essential fuel for providing the Claimant with the requisite knowledge under sections 14(1)(b) and 14(1)(d) of the Limitation Act 1980.
Section 33
There was an issue of whether (if the judge was wrong about section 14 above) he should exercise his discretion under section 33 of the Limitation Act 1980 to allow the action to proceed. Justice Leighton-Williams commented that it was not unusual for allegations of sexual abuse to be made several years after the event. That was made clear by the psychiatric evidence. The Claimant had also suffered from a personality disorder although it was not possible to reach any satisfactory conclusion on when he was under a disability.
However the real question was where the balance of prejudice lay. He considered each part of the section 33(3).
He decided that it would be equitable to allow the action to proceed. Therefore he would find for the Claimant on the issue of limitation.
FACTS:-
The Claimant was born on the 20th October 1965. He was brought up by his adoptive parents, who were a devout Roman Catholic family and attended Roman Catholic schools. In 1975 he became an altar boy. He alleged that he was abused between 1975 and 1983, i.e. between the ages of 10 and 18 by a Roman Catholic priest, Father Klonan. The abuse consisted of indecent fondling and buggery on a weekly basis. The acts were committed in the church and in the priest’s car.
The Claimant left home when he was 16 years of age in 1981. He had fathered children and was abusing alcohol. In 1983 he appeared in court on criminal charges.
Primary limitation expired in October 1986.
In 1988 when he was 22 or 23, he set fire to himself, suffering serious burn injuries. He was also convicted of burglary and sentenced to imprisonment. In prison he disclosed the abuse and was interviewed by the police. Neither party had been able to obtain the statement that he gave.
There was independent evidence that in 1974, another altar boy complained to his parents that he had been assaulted by Father Klonan in the form of police witness statements from that boy and his parents. Those complaints were brought to the attention of one Father McTiernan, Father Klonan’s superior in 1974 but Father Klonan remained at his post.
In 1992, the police investigated the other boy’s complaints and they interviewed the Claimant. The Claimant said that he gave another written statement, but neither party had been able to obtain that statement. At that time, the investigating police officer suggested to the Claimant that he should make a claim to the Criminal Injuries Compensation Board, which application presented by a firm of solicitors, and was successful. He was also examined by a psychiatrist, although he refused to be examined by a doctor in relation to his claim to the CICB.
In January 1995 a criminal solicitor wrote a letter saying that he had taken over the Claimant’s case from another firm of solicitors, and seeking a report on the condition of the Claimant’s right hand and leg. This was after the Claimant had cut his arm very seriously. There was no evidence that either Mr Wilson or the other firm of solicitors were acting for him in relation to his claim to the CICB.
In 1995, the Claimant also attended a solicitor to make a statement in support of a friend, alleging abuse by a social worker. He was told by the solicitor that he could only make a claim against Father Klonan. He also consulted solicitors in 1998 in relation to access to a child of his. He said in evidence that he was never advised that he could bring a claim against the Defendants.
On the 24th July 2000, the Defendants published a press notice about Father’s Klonan. The press notice stated that the Archbishop of Birmingham had been approached by an adult about abuse by Father Klonan, who had gone to Australia and was untraced. This adult had issued proceedings and the matter was settled. The press notice stated that the Diocese profoundly regretted the abuse by Father Klonan.
A journalist known to the Claimant suggested that he contact solicitors, who took up his case. He learned in due course of the complaint that was made to Father Tiernan in 1974. The Claimant said in evidence that he found it astonishing that Father McTiernan would have allowed something like this to happen.
Proceedings were issued on the 9th October 2001. It was accepted that the Claimant was not under any disability for a period of more than 3 years immediately preceding the commencement of the action, although he was capable of being categorised as a patient from time to time.
HELD:-
Justice Leighton-Williams QC said that he had no difficulty (after considering the medical evidence of two psychiatrists, Dr Benion and Dr Rix) in concluding that the Claimant’s personality disorder had been a source of considerable problems to him.
Section 14
He considered the terms of section 14(1) of the Limitation Act 1980.
14(1)……references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts-
- that the injury in question was significant; and
- that the injury was attributable in whole or part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
- the identity of the defendant;
- if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
And knowledge that any acts or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant…..
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire-
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
Justice Leighton-Williams said that the provision in (a) to (d) of subsection (1) are cumulative. The Claimant accepted that he knew that his injury was significant, and his counsel did not rely on the issue in subsection (1)(c).
The Defendant’s counsel argued that some of the allegations made by the Claimant in his particulars of claim could have been made in 1986. Therefore the Claimant was caught by section 14(1)(b). What had happened was that the Claimant in 2000 learned not of additional facts which enabled him, for the first time to found a claim but learned of facts which enabled him to make allegations additional to those he ought to have made earlier. The Claimant’s counsel argued that section 14(1)(d) was the relevant provision. Looking at the matter realistically, the Claimant did not have relevant knowledge until he learned, in 2000, from the press notice and contact with others that Father McTiernan had been told about the abuse.
The judge referred to the cases of Dobbie v Medway Health Authority [1994] 1 WLR 1234 and Spargo v North Essex District Authority [1997] PIQR P235. Cases on limitation were very fact sensitive. The idea that, in 1986 the Claimant should have been advised to bring proceedings against the present Defendants and not just Father Klonan had an air of unreality about it. Whilst the underlying component parts of negligence-duty, breach and damage were constant, whether or not a duty existed and whether a breach had occurred was not constant but evolved with the times and the reasonable expectations of people. One should not apply the standards of today to yesterday.
It was also unreal to expect the Claimant to have sought advice on whether he had a claim against anyone other than the perpetrator, or to have sought advice on whether he had a claim against anyone other than the perpetrator each time he consulted a solicitor.
Neither counsel had discovered any case in which a claim against the church had been based on sexual abuse of children by a priest, other than the claim which prompted the Claimant to take action in 1999 or 2000. Sexual abuse had recently become a prominent news item in the United States and to a lesser extent in England and Wales. The publication of the press notice on the 24th July 2000 put a complete different picture on it.
Therefore the additional facts discovered by the Claimant in 2000 were essential fuel for providing the Claimant with the requisite knowledge under sections 14(1)(b) and 14(1)(d) of the Limitation Act 1980.
Section 33
There was an issue of whether (if the judge was wrong about section 14 above) he should exercise his discretion under section 33 of the Limitation Act 1980 to allow the action to proceed. Justice Leighton-Williams commented that it was not unusual for allegations of sexual abuse to be made several years after the event. That was made clear by the psychiatric evidence. The Claimant had also suffered from a personality disorder although it was not possible to reach any satisfactory conclusion on when he was under a disability.
However the real question was where the balance of prejudice lay. He considered each part of the section 33(3).
- Length of and the reasons for the delay – the judge would work on the assumption that time would begin to run at some time between 1986 (when the Claimant was 21) and 1997 (3 years before the issue of proceedings). So the delay was about 3 years to 14 years. The reasons for delay would be those sets out when dealing with the date of knowledge point.
- The extent to which having regard to the delay, the evidence adduced or likely to be adduced by the Claimant or the Defendant was likely to be less cogent, than if the action had been brought within the time allowed by section 11. The Defendants said that they had no witnesses. Father Klonan had disappeared and Father McTiernan had died in 1996. However it was accepted that Father Klonan would have fled in any event. In relation to Father McTiernan, he had been interviewed by the police and the judge would be very surprised if no-one in the church knew about this. Any failure to investigate would appear to be the fault of the church. On the other hand, the evidence of the other complainant was very clear, that he complained to Father McTiernan and there was no suggestion that this evidence was unreliable. The other claim made against the church based on abuse by Father Klonan had been settled. That did not assist the Defendants’ arguments on prejudice.
- 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 Claimant for information or inspection for the purposes of ascertaining facts which were or might be relevant to the Claimant’s cause of action against the Defendant. All the Defendants’ conduct could be considered here, and this could encompass the allegation that they kept quiet about the complaint. Justice Leighton-Williams said that this raised difficult issues, which had not been explored before him and he was not satisfied on the evidence that the Defendants had failed to cooperate under this subsection (c). That was tantamount to saying that the Defendants ought to have gone public about Father Klonan or taken steps to identify those who may have been abused to alert them to the possibility of redress.
- Concerned the duration of the disability, (e) the extent to which the Claimant acted promptly and reasonably and (f) the steps that the Claimant took to take advice. Justice Leighton-Williams had already dealt with that issue under the question of knowledge.
He decided that it would be equitable to allow the action to proceed. Therefore he would find for the Claimant on the issue of limitation.