MAGA (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR TO THE SUPREME COURT) V TRUSTEES OF THE BIRMINGHAM ARCHDIOCESE OF THE ROMAN CATHOLIC CHURCH [2009] EWHC 780 (QB)
FACTS:-
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. He could not read or write.
It was alleged that in 1974, a Father McTernan, Father’s Clonan’s immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. In that year, the Claimant was moved to a series of special schools owned by Pitt House Schools Limited (also a Defendant), where he alleged abuse.
In 1988 there was an allegation made by an inmate at Grendon Underwood Prison that he had been abused by Father Clonan. In July 1992 further allegations were brought to the attention of Father Clonan himself by parents of a child who alleged abuse. Father Clonan fled the country. In September 1996, Father McTernan died. In December 2000, following publicity about the case, the Archdiocese published a statement to the effect that Father Clonan was a danger to children. On the 30th November 2000, the Claimant made a statement to the police, but it was not until the 31st July 2006 that a Letter of Claim was sent to the Defendants and proceedings were issued on the 26th September 2006. The claim was framed in vicarious liability and negligence.
HELD:-
Mr Justice Jack dealt with three separate issues, limitation, liability and damages.
Limitation
The Claimant’s counsel submitted that the Claimant had been under a disability within the meaning of Section 28(1) of the Limitation Act 1980, alternatively he could rely on Sections 11 and 14 of the same Act, or he could rely on the court’s discretion to disapply the limitation period pursuant to Section 33 of the Limitation Act 1980.
Jack J said that the Mental Capacity Act 2005 amended the relevant provision of the Limitation Act 1980, but it did not come into until the 1st October 2007, so the issue was to be determined in accordance with a provision that had since been amended.
Jack J considered sections 28(1) and 38(2) to (3). Section 38(3) had been amended by the Care Standards Act 2000 but the amendment was not material. Section 38(2) which included the words “of unsound mind” were replaced by the Mental Capacity Act 2005 – section 67(1) and Schedule 6, with the words:-
“……lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings.”
Section 38(3) was repealed. The Mental Capacity Act 2005 provided by section 2(1) that:-
“2(1) For the purposes of this Act a person lacks capacity in relation to a matter if at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
The relevant matter was the conduct of legal proceedings. Justice J referred to relevant caselaw beginning with the case of Kirby v Leather [1965] 2 QB 367 and then moving onto the unreported case of White v Fell 12th November 1987 which was only available from its citation in Masterman-Lister v Brutton [2003] 1 WLR 1511. Boreham J had said that the expression “incapable of managing her own affairs and property” had to be construed in a common sense way. The fact that the Claimant could not manage a large sum of money was not conclusive. The Claimant had to be capable of insight and understanding of the fact that she required advice. Having identified the problem, the Claimant had to seek an appropriate adviser, and finally the Claimant needed sufficient mental capacity to understand and make decisions based on such advice as she might receive.
In Masterman-Lister the Court of Appeal said that the issue of mental capacity might be different at different times and for different purposes. Adults were presumed to have capacity and the right of a person to conduct his own litigation and manage his property, were not lightly to be taken away. The court should only take over the decision making function of an individual where it was shown on the balance of probabilities that such a person did not have the capacity sufficiently to understand, absorb and retain information (including advice) relevant to the matters in question, sufficiently to enable him or her to make decisions based upon such information. However the test was issue specific.
In another case, Lindsay v Wood [2006] EWHC 2895 the judge had to consider the issue of capacity in relation to a brain damaged Claimant. He considered the scenario where the Claimant would have to take advice from his advisers on whether to accept an offer and the consequences of not doing so. The Claimant was found to be a patient.
Jack J said that it would usually be wrong to distinguish between the capacity to conduct proceedings after an action has been commenced and the capacity to conduct a claim up to and including the commencement of the action. The burden was on the Claimant to establish that he was under a disability.
Jack J turned to the Claimant’s evidence, which was given by video link, and thereafter near to the court. A striking feature of his evidence was that he was quite unable to deal with questions as to contradictions in his evidence and as to what he had said on other occasions. He had had a previous claim for a road traffic accident and had accepted the very first offer. His medical notes pointed to support being put in place for him and to his being very vulnerable. He had a low IQ and had been described as having a mild learning disability. However he knew how to use his disability to his advantage.
Jack J considered the evidence of the Claimant’s psychiatrist, Dr Shapiro, who said that the Claimant would not understand whether or not to accept offers of settlement. Professor Murphy for the Defendants took a contrary view. There was also a Dr Gill, who was instructed by Pitt House Schools Limited. In a joint statement he agreed with Professor Murphy that the Claimant was a borderline case.
Jack J considered the three situations, in which capacity could arise in connection with personal injury litigation. In relation to whether the Claimant had the mental capacity to manage a large sum of money, it was clear that that he did not.
In relation to his capacity to manage litigation, he was plainly in a better position than the Claimant in Kirby v Leather. The position was not as clear as that in Masterman-Lister. Jack J concluded that the Claimant did not have mental capacity to conduct litigation, and therefore was of unsound mind for the purpose of section 38(2) of the Limitation Act 1980 prior to the issue of proceedings.
Sections 11 and 14 of the Limitation Act 1980
Jack J said that the Claimant did not need to rely on these sections. The Claimant’s counsel had submitted that the failure of Father McTernan to report that another boy had been abused in 1974 was an “act or omission” within the meaning of section 14(1)(b). The Defendant’s counsel had relied upon the case of Dobbie v Medway Health Authority [1994] 1 WLR 1234 but Jack J said that the circumstances in this case were different. The Claimant did not know the facts, neither did he know that there had been negligence on the part of the Defendant. Therefore the limitation question was to be answered in his favour, his claim in negligence would not be barred by Section 11.
Section 33 of the Limitation Act 1980
Jack J said that the first issue was the prejudice to the Claimant by reason of his action being time barred, and the other was the prejudice to the Church caused by disapplying the limitation period. In Horton v Sadler [2007] 1 AC 307 the House of Lords held that section 33 conferred a wide and unfettered discretion empowering the court to disapply the application of Section 11. In A v Hoare [2008] 1 AC 844 Lord Brown said that there was a distinction to be drawn between a case where the abuser had been convicted and a case where the complaint had come out of the blue with no apparent support for it. In AB and Others v Nugent Care Society, 30 January 2009 Manchester District Registry Irwin J reviewed recent developments in Section 33.
Jack J said that in this view there were three matters which merited attention:-
The delay in this case was very long, 30 years after the alleged abuse. The Claimant went to solicitors in 2003 but the claim was not issued until 2006, and there was no satisfactory explanation for the delay. However that delay after so many years had little effect.
In relation to the cogency of the evidence, the Claimant’s evidence was difficult to assess. He was prone to exaggeration. The passage of time had not created those difficulties, although it had undoubtedly increased them. However Father Clonan would never have given evidence, even if the trial had been held back in the seventies. His removal of himself from the jurisdiction strongly supported the allegation that he was an abuser. The Church’s position was that it was not admitted that Father Clonan was an abuser, however it was not denied either. The Church had issued a statement in 2000 saying that Father Clonan was a risk to children. Therefore the passage of time had not disadvantaged the Church.
There was also the evidence of the other boy, M and his father, who had complained to Father McTernan in 1974. A very strong case could be made that the parents of M would not have invented their complaint to Father McTernan.
In relation to the conduct of the Defendant, Father Clonan disappeared in 1992 after an allegation was made against him and eventually had gone to Australia. Neither the police nor the church were able to question him. His file had been lost. The Church had recognised in a public statement that the allegations against Father Clonan were probably true.
Jack J considered the other issues in Section 33(3). The proceedings should have been brought much more quickly but that delay of three years carried little weight.
Jack J had also been referred to the changes in the law wrought by Lister v Hesley Hall Limited [2002] 1 AC 215 and A v Hoare [2008] 1 AC 844. If the Claimant had taken advice earlier, he might well have been advised not to sue. Jack J said that this carried weight with regard to his claim based on vicarious liability.
Liability
The Claimant’s evidence gave rise to difficulties. He had a tendency to exaggerate and may be to fabricate. However some of the things that he had said had turned out to be true. Jack J was satisfied that the essence of the Claimant’s evidence was true.
Father Clonan had been very popular in the 1970’s in the community. He groomed the Claimant for abuse, by offering him jobs around the church or cleaning his car. Jack J said that he was satisfied that Father Clonan’s real purpose was to abuse the Claimant.. The abuse consisted of oral sex, as well as touching of the Claimant’s genitals and bottom and masturbation. There may have been some penetration amounting to buggery, but it was not more probable than not. The abuse was likely to have lasted less than a year and more than 6 months.
The claim based on vicarious liability
Jack J considered the cases of Lister v Hesley Hall Ltd [2002] 1 AC 215, Dubai Aluminium Co. Ltd v Salaam [2002] UKHL 48, Mattis v Pollock [2003] EWCA Civ 887, Bernard v Attorney General of Jamaica [2004], Bazley v Curry (1999) 174 DLR (4th) 45, Jacobi v Griffiths (1999) 174 DLR (4th) 71 and Gravil v Caroll [2008] EWCA Civ 689.
It was accepted by the Defendant that there could be circumstances in which the Church could be vicariously liable for sexual assaults committed by one of its priests. However the assaults of Father Clonan on the Claimant were not so closely connected with his employment to render the Church liable. The Claimant’s counsel referred to a documented entitled “Doctrinal Note on some Aspects of Evangelisation” dated 14th December 2007 and approved by the Pope. It had been Father Clonan’s duty to befriend non-Roman Catholics, to gain their trust and establish a relationship. Father Clonan had set up a disco for children and this was for non-Catholics as well. Jack J said that it was clear that youth work was a major part of Father Clonan’s duties. However his association with the Claimant was not sufficient to found a claim based on vicarious liability.
The claim based in negligence
It was accepted by the Defendant’s counsel that any negligence on the part of Father McTernan was to be treated as negligence on the part of the church. However reliance was placed on the case of Hill v Chief Constable of West Yorkshire [1989] 1 AC 53. However the facts in that case were different to those in this case.
There was also the issue of whether it was just, fair and reasonable to impose a duty of care as was laid out in the case of Caparo v Dickman [1990] 2 AC 605. Jack J said this test might be compared with the test in relation to vicarious liability. That was whether the tort was so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. The Church could not be liable in negligence to a victim whom Father Clonan had found one day in an amusement arcade. The Claimant fell on the same side of the line as such a person, although much closer to the line.
Therefore the issue of negligence did not arise, since there was no duty of care and the claim in negligence failed.
However if Jack J was found wrong on that issue on appeal, then the claim in negligence would succeed. He took account of the standards of the 1970’s in reporting child abuse, but Father McTernan should have reported the matter, when it was brought to his attention.
Damages
Damages would be awarded at £17,500, which was £10,000 for the actual abuse and £7500 for the psychological damage for which Father Clonan was responsible. In relation to loss of earnings, in the joint statement the experts had said that if the abuse would have tended to impair his capacity to relate to others, which might have further affected his severely limited employability. Using a broad brush approach, Jack J would award £30,000, but this would be divided into two to reflect the division of responsibility between the Church and the Pitt House Schools.
Jack J did not consider that there was a need for further therapy.
In relation to Court of Protection costs, it was agreed that he need not make any more detailed finding under this head.
FACTS:-
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. He could not read or write.
It was alleged that in 1974, a Father McTernan, Father’s Clonan’s immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. In that year, the Claimant was moved to a series of special schools owned by Pitt House Schools Limited (also a Defendant), where he alleged abuse.
In 1988 there was an allegation made by an inmate at Grendon Underwood Prison that he had been abused by Father Clonan. In July 1992 further allegations were brought to the attention of Father Clonan himself by parents of a child who alleged abuse. Father Clonan fled the country. In September 1996, Father McTernan died. In December 2000, following publicity about the case, the Archdiocese published a statement to the effect that Father Clonan was a danger to children. On the 30th November 2000, the Claimant made a statement to the police, but it was not until the 31st July 2006 that a Letter of Claim was sent to the Defendants and proceedings were issued on the 26th September 2006. The claim was framed in vicarious liability and negligence.
HELD:-
Mr Justice Jack dealt with three separate issues, limitation, liability and damages.
Limitation
The Claimant’s counsel submitted that the Claimant had been under a disability within the meaning of Section 28(1) of the Limitation Act 1980, alternatively he could rely on Sections 11 and 14 of the same Act, or he could rely on the court’s discretion to disapply the limitation period pursuant to Section 33 of the Limitation Act 1980.
Jack J said that the Mental Capacity Act 2005 amended the relevant provision of the Limitation Act 1980, but it did not come into until the 1st October 2007, so the issue was to be determined in accordance with a provision that had since been amended.
Jack J considered sections 28(1) and 38(2) to (3). Section 38(3) had been amended by the Care Standards Act 2000 but the amendment was not material. Section 38(2) which included the words “of unsound mind” were replaced by the Mental Capacity Act 2005 – section 67(1) and Schedule 6, with the words:-
“……lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings.”
Section 38(3) was repealed. The Mental Capacity Act 2005 provided by section 2(1) that:-
“2(1) For the purposes of this Act a person lacks capacity in relation to a matter if at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
The relevant matter was the conduct of legal proceedings. Justice J referred to relevant caselaw beginning with the case of Kirby v Leather [1965] 2 QB 367 and then moving onto the unreported case of White v Fell 12th November 1987 which was only available from its citation in Masterman-Lister v Brutton [2003] 1 WLR 1511. Boreham J had said that the expression “incapable of managing her own affairs and property” had to be construed in a common sense way. The fact that the Claimant could not manage a large sum of money was not conclusive. The Claimant had to be capable of insight and understanding of the fact that she required advice. Having identified the problem, the Claimant had to seek an appropriate adviser, and finally the Claimant needed sufficient mental capacity to understand and make decisions based on such advice as she might receive.
In Masterman-Lister the Court of Appeal said that the issue of mental capacity might be different at different times and for different purposes. Adults were presumed to have capacity and the right of a person to conduct his own litigation and manage his property, were not lightly to be taken away. The court should only take over the decision making function of an individual where it was shown on the balance of probabilities that such a person did not have the capacity sufficiently to understand, absorb and retain information (including advice) relevant to the matters in question, sufficiently to enable him or her to make decisions based upon such information. However the test was issue specific.
In another case, Lindsay v Wood [2006] EWHC 2895 the judge had to consider the issue of capacity in relation to a brain damaged Claimant. He considered the scenario where the Claimant would have to take advice from his advisers on whether to accept an offer and the consequences of not doing so. The Claimant was found to be a patient.
Jack J said that it would usually be wrong to distinguish between the capacity to conduct proceedings after an action has been commenced and the capacity to conduct a claim up to and including the commencement of the action. The burden was on the Claimant to establish that he was under a disability.
Jack J turned to the Claimant’s evidence, which was given by video link, and thereafter near to the court. A striking feature of his evidence was that he was quite unable to deal with questions as to contradictions in his evidence and as to what he had said on other occasions. He had had a previous claim for a road traffic accident and had accepted the very first offer. His medical notes pointed to support being put in place for him and to his being very vulnerable. He had a low IQ and had been described as having a mild learning disability. However he knew how to use his disability to his advantage.
Jack J considered the evidence of the Claimant’s psychiatrist, Dr Shapiro, who said that the Claimant would not understand whether or not to accept offers of settlement. Professor Murphy for the Defendants took a contrary view. There was also a Dr Gill, who was instructed by Pitt House Schools Limited. In a joint statement he agreed with Professor Murphy that the Claimant was a borderline case.
Jack J considered the three situations, in which capacity could arise in connection with personal injury litigation. In relation to whether the Claimant had the mental capacity to manage a large sum of money, it was clear that that he did not.
In relation to his capacity to manage litigation, he was plainly in a better position than the Claimant in Kirby v Leather. The position was not as clear as that in Masterman-Lister. Jack J concluded that the Claimant did not have mental capacity to conduct litigation, and therefore was of unsound mind for the purpose of section 38(2) of the Limitation Act 1980 prior to the issue of proceedings.
Sections 11 and 14 of the Limitation Act 1980
Jack J said that the Claimant did not need to rely on these sections. The Claimant’s counsel had submitted that the failure of Father McTernan to report that another boy had been abused in 1974 was an “act or omission” within the meaning of section 14(1)(b). The Defendant’s counsel had relied upon the case of Dobbie v Medway Health Authority [1994] 1 WLR 1234 but Jack J said that the circumstances in this case were different. The Claimant did not know the facts, neither did he know that there had been negligence on the part of the Defendant. Therefore the limitation question was to be answered in his favour, his claim in negligence would not be barred by Section 11.
Section 33 of the Limitation Act 1980
Jack J said that the first issue was the prejudice to the Claimant by reason of his action being time barred, and the other was the prejudice to the Church caused by disapplying the limitation period. In Horton v Sadler [2007] 1 AC 307 the House of Lords held that section 33 conferred a wide and unfettered discretion empowering the court to disapply the application of Section 11. In A v Hoare [2008] 1 AC 844 Lord Brown said that there was a distinction to be drawn between a case where the abuser had been convicted and a case where the complaint had come out of the blue with no apparent support for it. In AB and Others v Nugent Care Society, 30 January 2009 Manchester District Registry Irwin J reviewed recent developments in Section 33.
Jack J said that in this view there were three matters which merited attention:-
- The conduct of the Claimant
- The conduct of the Defendant
- The possibility of having a fair trial
The delay in this case was very long, 30 years after the alleged abuse. The Claimant went to solicitors in 2003 but the claim was not issued until 2006, and there was no satisfactory explanation for the delay. However that delay after so many years had little effect.
In relation to the cogency of the evidence, the Claimant’s evidence was difficult to assess. He was prone to exaggeration. The passage of time had not created those difficulties, although it had undoubtedly increased them. However Father Clonan would never have given evidence, even if the trial had been held back in the seventies. His removal of himself from the jurisdiction strongly supported the allegation that he was an abuser. The Church’s position was that it was not admitted that Father Clonan was an abuser, however it was not denied either. The Church had issued a statement in 2000 saying that Father Clonan was a risk to children. Therefore the passage of time had not disadvantaged the Church.
There was also the evidence of the other boy, M and his father, who had complained to Father McTernan in 1974. A very strong case could be made that the parents of M would not have invented their complaint to Father McTernan.
In relation to the conduct of the Defendant, Father Clonan disappeared in 1992 after an allegation was made against him and eventually had gone to Australia. Neither the police nor the church were able to question him. His file had been lost. The Church had recognised in a public statement that the allegations against Father Clonan were probably true.
Jack J considered the other issues in Section 33(3). The proceedings should have been brought much more quickly but that delay of three years carried little weight.
Jack J had also been referred to the changes in the law wrought by Lister v Hesley Hall Limited [2002] 1 AC 215 and A v Hoare [2008] 1 AC 844. If the Claimant had taken advice earlier, he might well have been advised not to sue. Jack J said that this carried weight with regard to his claim based on vicarious liability.
Liability
The Claimant’s evidence gave rise to difficulties. He had a tendency to exaggerate and may be to fabricate. However some of the things that he had said had turned out to be true. Jack J was satisfied that the essence of the Claimant’s evidence was true.
Father Clonan had been very popular in the 1970’s in the community. He groomed the Claimant for abuse, by offering him jobs around the church or cleaning his car. Jack J said that he was satisfied that Father Clonan’s real purpose was to abuse the Claimant.. The abuse consisted of oral sex, as well as touching of the Claimant’s genitals and bottom and masturbation. There may have been some penetration amounting to buggery, but it was not more probable than not. The abuse was likely to have lasted less than a year and more than 6 months.
The claim based on vicarious liability
Jack J considered the cases of Lister v Hesley Hall Ltd [2002] 1 AC 215, Dubai Aluminium Co. Ltd v Salaam [2002] UKHL 48, Mattis v Pollock [2003] EWCA Civ 887, Bernard v Attorney General of Jamaica [2004], Bazley v Curry (1999) 174 DLR (4th) 45, Jacobi v Griffiths (1999) 174 DLR (4th) 71 and Gravil v Caroll [2008] EWCA Civ 689.
It was accepted by the Defendant that there could be circumstances in which the Church could be vicariously liable for sexual assaults committed by one of its priests. However the assaults of Father Clonan on the Claimant were not so closely connected with his employment to render the Church liable. The Claimant’s counsel referred to a documented entitled “Doctrinal Note on some Aspects of Evangelisation” dated 14th December 2007 and approved by the Pope. It had been Father Clonan’s duty to befriend non-Roman Catholics, to gain their trust and establish a relationship. Father Clonan had set up a disco for children and this was for non-Catholics as well. Jack J said that it was clear that youth work was a major part of Father Clonan’s duties. However his association with the Claimant was not sufficient to found a claim based on vicarious liability.
The claim based in negligence
It was accepted by the Defendant’s counsel that any negligence on the part of Father McTernan was to be treated as negligence on the part of the church. However reliance was placed on the case of Hill v Chief Constable of West Yorkshire [1989] 1 AC 53. However the facts in that case were different to those in this case.
There was also the issue of whether it was just, fair and reasonable to impose a duty of care as was laid out in the case of Caparo v Dickman [1990] 2 AC 605. Jack J said this test might be compared with the test in relation to vicarious liability. That was whether the tort was so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. The Church could not be liable in negligence to a victim whom Father Clonan had found one day in an amusement arcade. The Claimant fell on the same side of the line as such a person, although much closer to the line.
Therefore the issue of negligence did not arise, since there was no duty of care and the claim in negligence failed.
However if Jack J was found wrong on that issue on appeal, then the claim in negligence would succeed. He took account of the standards of the 1970’s in reporting child abuse, but Father McTernan should have reported the matter, when it was brought to his attention.
Damages
Damages would be awarded at £17,500, which was £10,000 for the actual abuse and £7500 for the psychological damage for which Father Clonan was responsible. In relation to loss of earnings, in the joint statement the experts had said that if the abuse would have tended to impair his capacity to relate to others, which might have further affected his severely limited employability. Using a broad brush approach, Jack J would award £30,000, but this would be divided into two to reflect the division of responsibility between the Church and the Pitt House Schools.
Jack J did not consider that there was a need for further therapy.
In relation to Court of Protection costs, it was agreed that he need not make any more detailed finding under this head.