J K and P V ARCHBISHOP OF BIRMINGHAM (1) THE TRUSTEES FOR THE BIRMINGHAM ARCHDIOCESE OF THE ROMAN CATHOLIC CHURCH (2) Unreported (2008) Master Fontaine
FACTS:-
The case concerned three Claimant bringing claims for damages in respect of alleged sexual abuse by one Father Clonan. The relevant dates for the purposes of limitation were:-
J
Date of birth 9/1/74
Period of alleged abuse 1986 to 1991
Expiry of preliminary limitation period – 9/1/95
Proceedings issued 23rd January 2006
K
Date of birth 1/3/67
Period of alleged abuse 1979 to 1982
Expiry of preliminary limitation period – 1/1/88
Proceedings issued 8th January 2006
P
Date of birth 4/5/79
Period of alleged abuse 1985/87 to 1991
Expiry of preliminary limitation period – 4/5/00
The claim consisted of two causes of action. Firstly the Defendants were vicariously liable for the alleged assaults by Father Clonan. The second was that the Defendants were liable in negligence in failing to act upon information allegedly given to Father Clonan’s immediate superior. The Defendants had said that they would accept vicarious liability for any assault provided they were committed within the course of Father Clonan’s employment.
The issues of Sections 14 and 33 of the Limitation Act 1980 arose. The Defendants wanted the issue of limitation decided by way of preliminary issue.
HELD:-
Master Fontaine considered the competing arguments of both sides:-
For the Defendants it was said:-
The Claimants’ arguments went as follows:-
Master Fontaine considered the guidance from the authorities. The case of Steele was a money recovery case. Neuberger J said that the following matters were relevant:-
The Claimants had also relied on the judgment in Ablett and on the decision of Sedley LJ in the same matter dated the 4th December 2000 on the application for permission to appeal. Master Fontaine accepted the Defendants’submission pursuant to the Practice Direction (Citation of Authority) 2001 1 WLR 1001 Costs CA which meant that the Claimants were not entitled to rely upon this decision in the present hearing. However Master Fontaine said that she was entitled to take judicial notice of what had been said.
Master Fontaine also referred to the case of Forbes where Stuart-Smith LJ stated that the strength of the merits of the claim was a relevant consideration under the exercise of discretion under section 33. Stuart-Smith referred to his own judgment in Dale v British Coal Corporation [1992] PIQR P373 CA and the judgment of Purchas LJ in Nash v Eli Lilly & Co. [1993] 1 WLR 784.
The case of G v Archbishop of Birmingham had involved a Claimant with the same claim in respect of abuse by Father Clonan. In that case the matter had been allowed to proceed by way of full trial to include limitation matters. The Deputy Judge in that case said that the fact that another Father Clonan case had been settled did not assist the Defendant’s case on limitation. Master Fontaine said that this decision was relevant, because it tended to support the possibility that if limitation were determined in the Claimant’s favour, there would be a settlement.
In the Bryn Alyn case, the Court of Appeal said that the judge should strain to decide limitation by way of preliminary issue. They also said that where a judge was determining a section 33 issue along with substantive issues in the case, he should take care not to determine the substantive issue including liability, causation and quantum. Master Fontaine accepted the Defendant’s submission that the decision in the case of A v Hoare did not expressly overturn the comments of the Court of Appeal in Bryn Alyn. However A v Hoare did support a more generous approach to the exercise of discretion.
In the Nugent Care Society case, Elias J had said that the court should have a “Chinese wall” between the case on liability and the case on limitation. He also said that there would be a real saving in costs.
Master Fontaine set out the factors that she believed to be determinative in any case.
Master Fontaine said that in this case, the following factors were important:-
Therefore Master Fontaine would not make an order for a trial on preliminary issue.
FACTS:-
The case concerned three Claimant bringing claims for damages in respect of alleged sexual abuse by one Father Clonan. The relevant dates for the purposes of limitation were:-
J
Date of birth 9/1/74
Period of alleged abuse 1986 to 1991
Expiry of preliminary limitation period – 9/1/95
Proceedings issued 23rd January 2006
K
Date of birth 1/3/67
Period of alleged abuse 1979 to 1982
Expiry of preliminary limitation period – 1/1/88
Proceedings issued 8th January 2006
P
Date of birth 4/5/79
Period of alleged abuse 1985/87 to 1991
Expiry of preliminary limitation period – 4/5/00
The claim consisted of two causes of action. Firstly the Defendants were vicariously liable for the alleged assaults by Father Clonan. The second was that the Defendants were liable in negligence in failing to act upon information allegedly given to Father Clonan’s immediate superior. The Defendants had said that they would accept vicarious liability for any assault provided they were committed within the course of Father Clonan’s employment.
The issues of Sections 14 and 33 of the Limitation Act 1980 arose. The Defendants wanted the issue of limitation decided by way of preliminary issue.
HELD:-
Master Fontaine considered the competing arguments of both sides:-
For the Defendants it was said:-
- There would be a substantial saving in time and cost
- Guidance from the cases of KR v Bryn Alyn Community (Holdings) Ltd and another [2003] EWCA Civ 85 and Various Claimants v the Nugent Care Society (unreported) (sitting at Cardiff Crown Court) Transcript 25 April 2005 suggested that it would be difficult for the judge to separate out issues of limitation in circumstances where he or or she might have formed a view as to liability.
- Two trials, one on limitation and the next on liability would cost more but this was always the case, and if this factor were determinative, there would never be any preliminary issue trial on limitation.
- There had been other preliminary trials on limitation, G v Archbishop of Birmingham [2002] EWHC 3177 and A v Hoare [2008] 2 WLR 311 and in none of those cases had the court had any difficulty dealing with the issue of limitation first.
- The expert evidence of the psychiatrists could be put before the court in writing and it was not necessary for them to give evidence to give oral evidence.
The Claimants’ arguments went as follows:-
- If the Claimants won on limitation, there would be a substantial increase in costs.
- Giving evidence twice would be distressing for the Claimants
- There would be an overlap in the issues
- There were contested issues of law in respect of vicarious liability which a judge would have to decide before he could address section 33.
- There would be very little overall saving in time, perhaps one to two days at most, if the matter went to preliminary issue
- The guidance given by the court in Bryn Alyn was no longer appropriate after the decision on limitation was overturned by the House of Lords in A v Hoare. The judgement in Ablett and others v Devon County Council (unrep transcript 21 September 2000) Toulson J and Forbes v Wandsworth Health Authority [1997] QB 402, and Steele v Steele (unrep. Transcript 27 April 2001 before Neuberger J 27 April 2001 were more relevant.
- The court would wish to take into account the strength of the Claimants’ cases in exercising its discretion under section 33.
Master Fontaine considered the guidance from the authorities. The case of Steele was a money recovery case. Neuberger J said that the following matters were relevant:-
- Whether the determination of the preliminary issue would dispose of the case or at least one aspect of the case
- Whether the preliminary issue could significantly cut down the cost and time involved in pre-trial preparation or in connection with the trial itself.
- If the preliminary issue was an issue of law, how much effort, if any, would be involved in identifying the relevant facts for the purpose of the preliminary issue.
- If the preliminary issue was an issue of law, to what extent was it to be determined on the agreed facts?
- Where the facts were not agree, to what extent did that imping on the value of the preliminary issue?
- Whether the determination of the preliminary issue might unreasonably fetter either or both parties or the court in achieving a just result?
- To what extent was there a risk of the determination of the preliminary issue increasing costs and/or delaying the trial
- To what extent the determination of the preliminary issue may be irrelevant.
- To what extent was there a risk that the determination of the preliminary issue could lead to an application for the pleading being amended so as to avoid the consequences of the determination
- Whether taking into account all the previous points, it was just to order a preliminary issue.
The Claimants had also relied on the judgment in Ablett and on the decision of Sedley LJ in the same matter dated the 4th December 2000 on the application for permission to appeal. Master Fontaine accepted the Defendants’submission pursuant to the Practice Direction (Citation of Authority) 2001 1 WLR 1001 Costs CA which meant that the Claimants were not entitled to rely upon this decision in the present hearing. However Master Fontaine said that she was entitled to take judicial notice of what had been said.
Master Fontaine also referred to the case of Forbes where Stuart-Smith LJ stated that the strength of the merits of the claim was a relevant consideration under the exercise of discretion under section 33. Stuart-Smith referred to his own judgment in Dale v British Coal Corporation [1992] PIQR P373 CA and the judgment of Purchas LJ in Nash v Eli Lilly & Co. [1993] 1 WLR 784.
The case of G v Archbishop of Birmingham had involved a Claimant with the same claim in respect of abuse by Father Clonan. In that case the matter had been allowed to proceed by way of full trial to include limitation matters. The Deputy Judge in that case said that the fact that another Father Clonan case had been settled did not assist the Defendant’s case on limitation. Master Fontaine said that this decision was relevant, because it tended to support the possibility that if limitation were determined in the Claimant’s favour, there would be a settlement.
In the Bryn Alyn case, the Court of Appeal said that the judge should strain to decide limitation by way of preliminary issue. They also said that where a judge was determining a section 33 issue along with substantive issues in the case, he should take care not to determine the substantive issue including liability, causation and quantum. Master Fontaine accepted the Defendant’s submission that the decision in the case of A v Hoare did not expressly overturn the comments of the Court of Appeal in Bryn Alyn. However A v Hoare did support a more generous approach to the exercise of discretion.
In the Nugent Care Society case, Elias J had said that the court should have a “Chinese wall” between the case on liability and the case on limitation. He also said that there would be a real saving in costs.
Master Fontaine set out the factors that she believed to be determinative in any case.
- The potential saving in costs if a hearing of a preliminary issue was ordered
- The potential increase in costs if the Claimant was successful on limitation issues and the Defendants decided to contest liability, causation and quantum issues
- Whether it was preferable that the court should be able to determine limitation without having to consider at the same hearing whether the Defendants were liable or whether it was inevitable that that liability would have to be considered because the merits of the claim were relevant to the exercise of Section 33.
- The risk that the Claimants would have to give evidence twice
- The fact that if the preliminary issue were determined in the Defendant’s favour, the Claimants would not have to give evidence at all about the abuse itself.
- The extent to which assumptions of fact can be made
- Considering the matter overall, whether it would be just to order the trial of limitation as a preliminary issue.
Master Fontaine said that in this case, the following factors were important:-
- It would be more stressful for the Claimants to have to come to court twice
- The large degree of overlap between the evidence that would have to be given in respect of the limitation issues and liability and quantum
- It would be very difficult for the judge to exercise his discretion without regard to the merits of the claim
- The difference between a one to two day trial and a three day trial in terms of costs was not such that the costs savings would be a major factor in these cases
- The fact that section 14 issues and section 33 exercise of discretion would have to be exercised separately in respect of each of the two separate causes of action was an additional factor.
Therefore Master Fontaine would not make an order for a trial on preliminary issue.