Murray v Devenish [2018] EWHC 1895 (QB) limitation
The Claimant was born on 27th April 1958. He was a pupil at the Defendant’s school from September 1970 – July 1975. 4. He alleged that he was sexually abused by a teacher there for a period of about 18 months between the ages of 14 and 16. After the teacher left the school, he corresponded with the Claimant and used inappropriately affectionate language. The teacher died in 1999. The religious order that owned the school, the Defendant did not admit that the assaults had taken place, but accepted that if they did, then they would be vicariously liable for those assaults. Mr Justice Nicol described the Claimant’s progress through life after he left school. The Claimant first approached the Defendant wishing to discuss his abuse in 2011 and asking for compensation, which was refused. He then instructed solicitors in December 2011, and they sent out a Letter of Claim in March 2013. Proceedings were issued protectively a few days later and they were served in December 2013. The litigation proceeded and it transpired that the Claimant had been examined by a psychiatrist in the litigation, prior to seeing the psychiatrist on whom he now relied. However, the Claimant now sought to abandon the report on which he relied and which had been served, and rely on the report of a third psychiatrist. He also sought to rely on a supplementary witness statement. The Defendant applied to strike out the Claimant’s claim, on the grounds that the Claimant had destroyed discloseable documents. The outcome of that application was that the Claimant’s claim was allowed to proceed, and he was allowed to serve a supplementary statement and to rely on the report of the third psychiatrist. However, he had to disclose the report of the first psychiatrist and the Defendant’s original strike out application to adjourned to the trial.
The assaults had taken place in 1974 to 1975. The trial judge, Mr Justice Nicol made the point that at the time, the Limitation Act 1980 was not yet in force. The relevant Act was the Limitation Act 1939, which amended by the Limitation Act 1975. The current Limitation Act 1980 effectively consolidated all the previous Limitation Acts. The 1975 Act had introduced a new Section 2D into the 1939 Act, which is the same as Section 33 of the Limitation Act 1980. So, the law had changed whilst the Claimant was a child, and long before limitation under the 1939 Act would have barred his claim. This would have happened in 1979 when he was 21 years of age. In the judgment, Nicol J was careful to make the point that he was restricted to considering the effect of Section 2D of the 1939 Act.
The Defendant had argued that the Claimant should not be permitted to argue that his claim could not have been brought earlier until the change in the law that allowed a direct claim against an employer for his employee’s abuse of children. The Defendant also argued that it was prejudiced because the law (since the abuse took place) turned in the Claimant’s favour. Nicol J rejected that argument. It might be a fiction that the common law had always been the same, but the Defendant’s argument (if correct) would mean pointless argument as to how novel a judicial decision was.
Nicol J noted that EB v Haughton [2011] EWHC 279 (QB) Slade J did disapply the primary limitation period in relation to a claim for historic sex abuse and did take into account in EB's favour that the judgment in A v Hoare represented a change in the law. However, in that case there was evidence that the Claimant had been advised, when Stubbings v Webb prevailed, that the Court could not extend the primary limitation period for deliberately inflicted assaults. There was no such evidence in this case. Put another way, there was no evidence that the state of the law as it was understood to be before A v Hoare played any part in the Claimant's delay in starting proceedings.
Nicol J set out the following principles :-
Consequently, Nicol J would not extend limitation in the Claimant’s favour, and he dismissed the claim.
The Claimant was born on 27th April 1958. He was a pupil at the Defendant’s school from September 1970 – July 1975. 4. He alleged that he was sexually abused by a teacher there for a period of about 18 months between the ages of 14 and 16. After the teacher left the school, he corresponded with the Claimant and used inappropriately affectionate language. The teacher died in 1999. The religious order that owned the school, the Defendant did not admit that the assaults had taken place, but accepted that if they did, then they would be vicariously liable for those assaults. Mr Justice Nicol described the Claimant’s progress through life after he left school. The Claimant first approached the Defendant wishing to discuss his abuse in 2011 and asking for compensation, which was refused. He then instructed solicitors in December 2011, and they sent out a Letter of Claim in March 2013. Proceedings were issued protectively a few days later and they were served in December 2013. The litigation proceeded and it transpired that the Claimant had been examined by a psychiatrist in the litigation, prior to seeing the psychiatrist on whom he now relied. However, the Claimant now sought to abandon the report on which he relied and which had been served, and rely on the report of a third psychiatrist. He also sought to rely on a supplementary witness statement. The Defendant applied to strike out the Claimant’s claim, on the grounds that the Claimant had destroyed discloseable documents. The outcome of that application was that the Claimant’s claim was allowed to proceed, and he was allowed to serve a supplementary statement and to rely on the report of the third psychiatrist. However, he had to disclose the report of the first psychiatrist and the Defendant’s original strike out application to adjourned to the trial.
The assaults had taken place in 1974 to 1975. The trial judge, Mr Justice Nicol made the point that at the time, the Limitation Act 1980 was not yet in force. The relevant Act was the Limitation Act 1939, which amended by the Limitation Act 1975. The current Limitation Act 1980 effectively consolidated all the previous Limitation Acts. The 1975 Act had introduced a new Section 2D into the 1939 Act, which is the same as Section 33 of the Limitation Act 1980. So, the law had changed whilst the Claimant was a child, and long before limitation under the 1939 Act would have barred his claim. This would have happened in 1979 when he was 21 years of age. In the judgment, Nicol J was careful to make the point that he was restricted to considering the effect of Section 2D of the 1939 Act.
The Defendant had argued that the Claimant should not be permitted to argue that his claim could not have been brought earlier until the change in the law that allowed a direct claim against an employer for his employee’s abuse of children. The Defendant also argued that it was prejudiced because the law (since the abuse took place) turned in the Claimant’s favour. Nicol J rejected that argument. It might be a fiction that the common law had always been the same, but the Defendant’s argument (if correct) would mean pointless argument as to how novel a judicial decision was.
Nicol J noted that EB v Haughton [2011] EWHC 279 (QB) Slade J did disapply the primary limitation period in relation to a claim for historic sex abuse and did take into account in EB's favour that the judgment in A v Hoare represented a change in the law. However, in that case there was evidence that the Claimant had been advised, when Stubbings v Webb prevailed, that the Court could not extend the primary limitation period for deliberately inflicted assaults. There was no such evidence in this case. Put another way, there was no evidence that the state of the law as it was understood to be before A v Hoare played any part in the Claimant's delay in starting proceedings.
Nicol J set out the following principles :-
- The court had a complete discretion to disapply limitation, and could refuse (in theory) to do so even though the balance of equity favoured the Claimant although if that were the case, discretion could only be exercised one way.
- The decision to waive limitation was best exercised at trial, when the judge had all the evidence before him and could decided whether its absence or presence prejudiced either side.
- It was not suggested by either party that limitation could be applied to one cause of action, but not another in this case, but in theory a court could do that.
- Prejudice to the Defendant would include defending the claim for consequential damage
- The issue of the Defendant’s insured status and its ability to meet the judgment would be relevant.
- The potential costs consequence of disapplying limitation were not relevant.
- The Defendant was significantly prejudiced in the conduct of its defence because of the death of the abuser.
- There were no personnel records for the abuser.
- The reasons for the Claimants’ delay were not good ones – in particular there was no explanation for the delay between his speaking to solicitors in 2011 and their sending out a Letter of Claim in 2013.
- The Claimant had destroyed some of his diaries. Whilst none of this was deliberate, the court was entitled to take that step as counting against him on limitation.
- Psychiatric records on the Claimant from 1977 and later therapy records had gone missing. This was an additional prejudice to the Defendant in relation to causation.
- There was nothing about the Defendant’s conduct after they were told of the abuse that attracted criticism
- In relation to delay on the part of the Claimant, the “switching of experts” had caused further delay in the litigation. There had been late disclosure of documents by the Claimant at the time of trial, and the Defendant’s psychiatric expert had described the
- The absence of insurance was not relevant as the Defendant had considerable assets. Nicol J was not persuaded by the argument that payment of the claim would divert money away from the Defendant’s charitable purpose.
Consequently, Nicol J would not extend limitation in the Claimant’s favour, and he dismissed the claim.