RAGGET V SOCIETY OF JESUS TRUST OF 1929 FOR ROMAN CATHOLIC PURPOSES AND THE GOVERNORS OF PRESTON CATHOLIC COLLEGE [2010] EWCA Civ 1002
FACTS:-
The Claimant had issued proceedings against the Defendant claiming damages for personal injury arising out of sexual abuse by Father Michael Spencer SJ who taught him at Preston Catholic College, a secondary school between 1969 and 1976. A trial on limitation and liability took place before Justice Swift who found for the Claimant. The Defendant now appealed on two grounds:-
JUDGEMENT:-
Lord Justice Thomas said that the argument put by the Defendant was based on a statement of principle made by Auld LJ in the case of KR v Bryn Alyn Community Limited [2003] EWCA Civ 85 to the effect that a judge must decide the issue under Section 33 before determining liability, as to do otherwise would “put the cart before the horse.”
However that case had been decided before the later case of A v Hoare [2008] UKHL 6 where the House of Lords held that the time limit for bringing a claim for intentional injuries could be extended under Section 33 of the Limitation Act 1980. In that case, it was stressed that the exercise of discretion under Section 33 was unfettered. In AB and Other v Nugent Care Society [2009] EWCA 827 the same point was made but the Court of Appeal also said that whilst hearing oral evidence from the Claimant might well be important, the judge should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and in particular, the effect of delay on the cogency of the evidence.
Thomas LJ said that the appeal court was concerned to se whether the judge had approached the exercise of discretion in accordance with principle and come to a decision within the ambit of the discretion open to the decision maker. It was not appropriate however to ascribe a format for the delivery of a judgement.
Thomas LJ went over the judgement of Swift J. He noted that she had made findings to the effect that the Claimant’s “knowledge” for the purposes of Sections 11 and 14 of the Limitation Act 1980 had dated from the time of the abuse. She had then carried out a careful analysis of the cogency of the evidence, and concluded that the Defendant was always going to have great difficulty persuading a court that the abuse had not occurred. As for the non availability of certain witnesses, this would not have improved the Defendant’s prospects. In relation to the problems proving causation, that was likely to operate to the Claimant’s detriment rather than the other way around.
Therefore the judge had decided the issue of Section 33 entirely in accordance with principle.
The Defendant had also argued that as it was always a Claimant’s burden to establish the extent of his loss, it could not be right in principle to say that there was no prejudice to a Defendant simply because the burden fell on the Claimant. Thomas LJ said that as the Claimant was seeking very significant damages on the basis that the abuse had affected the whole of his career both at University and also as a solicitor, proving that effect would be very difficult for the Claimant in all the circumstances of the case. The Defendant’s appeal would therefore be dismissed.
Toulson LJ and Mummery LJ agreed.
FACTS:-
The Claimant had issued proceedings against the Defendant claiming damages for personal injury arising out of sexual abuse by Father Michael Spencer SJ who taught him at Preston Catholic College, a secondary school between 1969 and 1976. A trial on limitation and liability took place before Justice Swift who found for the Claimant. The Defendant now appealed on two grounds:-
- The judge should not have decided that the abuse had occurred before deciding whether to exercise her power under Section 33 of the Limitation Act 1980 to extend the time limit. That approach was not permitted on the authorities.
- The judge had applied the wrong principle in determining whether the school had suffered prejudice in relation to the issue of causation.
JUDGEMENT:-
Lord Justice Thomas said that the argument put by the Defendant was based on a statement of principle made by Auld LJ in the case of KR v Bryn Alyn Community Limited [2003] EWCA Civ 85 to the effect that a judge must decide the issue under Section 33 before determining liability, as to do otherwise would “put the cart before the horse.”
However that case had been decided before the later case of A v Hoare [2008] UKHL 6 where the House of Lords held that the time limit for bringing a claim for intentional injuries could be extended under Section 33 of the Limitation Act 1980. In that case, it was stressed that the exercise of discretion under Section 33 was unfettered. In AB and Other v Nugent Care Society [2009] EWCA 827 the same point was made but the Court of Appeal also said that whilst hearing oral evidence from the Claimant might well be important, the judge should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and in particular, the effect of delay on the cogency of the evidence.
Thomas LJ said that the appeal court was concerned to se whether the judge had approached the exercise of discretion in accordance with principle and come to a decision within the ambit of the discretion open to the decision maker. It was not appropriate however to ascribe a format for the delivery of a judgement.
Thomas LJ went over the judgement of Swift J. He noted that she had made findings to the effect that the Claimant’s “knowledge” for the purposes of Sections 11 and 14 of the Limitation Act 1980 had dated from the time of the abuse. She had then carried out a careful analysis of the cogency of the evidence, and concluded that the Defendant was always going to have great difficulty persuading a court that the abuse had not occurred. As for the non availability of certain witnesses, this would not have improved the Defendant’s prospects. In relation to the problems proving causation, that was likely to operate to the Claimant’s detriment rather than the other way around.
Therefore the judge had decided the issue of Section 33 entirely in accordance with principle.
The Defendant had also argued that as it was always a Claimant’s burden to establish the extent of his loss, it could not be right in principle to say that there was no prejudice to a Defendant simply because the burden fell on the Claimant. Thomas LJ said that as the Claimant was seeking very significant damages on the basis that the abuse had affected the whole of his career both at University and also as a solicitor, proving that effect would be very difficult for the Claimant in all the circumstances of the case. The Defendant’s appeal would therefore be dismissed.
Toulson LJ and Mummery LJ agreed.