ROSE WOOD & OTHERS V KIRKLEES METROPOLITAN DISTRICT COUNCIL VERSUS KIRKLEES METROPOLITAN DISTRICT COUNCIL (unreported) 14th December 2004 in the Crown Court, Bradford
FACTS:-
This judgement concerned five lead cases, out of a group of seventeen claims outstanding in a group action relating to abuse at eleven children’s homes run the Defendant. Most of those claims had by the time of the judgement been settled and those that remained unresolved had been stayed, pending the outcome of the lead cases. The Claimants in the five cases had all been subject to alleged abuse in the 1980’s, with the exception of one A, who was in care during the 1970’s. The action had come from a police investigation “Operation Clyde”. Statements had been taken in 1997 and 1998. The Claimants were advised to contact solicitors or were referred to their current solicitors who issued proceedings in batches on a number of dates in the year 2000. A group litigation order was made on the 31st August 2001.
The Claimant sought to rely upon a date of knowledge for the purposes of section 14 of the Limitation Act, which post dated the issue of the claim form, being the date when their expert’s report, in each case from a clinical psychologist, was seen by them. Therefore the dates of issue preceded the date of knowledge as follows:-
Date of issue
A – 24th May 2000
B – 24th May 2000
H – 24th May 2000
K – 30th October 2000
G – 30th October 2000
Date of knowledge
A – 5th October 2000
B – 22nd November 2002
H – 26th January 2002
K – 29th July 2002
G – 3rd September 2001
Particulars of claim were served in April 2003 and made no reference to limitation. The Defences raised section 2 in respect of the allegations of assault, section 11 in respect of the allegations of negligence and also that it would not be equitable to allow the actions to proceed under section 33. Replies were then served by the Claimants made the assertion “The Claimant will contend that her date of knowledge was less than three years prior to the commencement of these proceedings.”
The Defendant’s counsel submitted that the Claimants were obliged to identify in their pleaded case a particular date rather than to assert generally that the date of knowledge was within the three years prior to the issue of proceedings. Having done so, the Claimants were tied to that date since the date pleaded could not by statutory definition be a date of knowledge within the meaning of section 14 and the case in its reliance upon this provision was bound to fail. He relied upon the case of Nash and Eli Lilley [1993] 1 WLR 782 where the court had said that it had difficulty in perceiving how in any case where a claimant has sought advice and taken proceedings, it can rightly be held that the claimant had not then had relevant knowledge.
The Claimants’ counsel had pointed to one of the cases in KR & Others v Bryn Alyn Community Holdings Limited in Liquidation & Another [2003] 3 WLR 107 (“KR”) where although proceedings were issued on the 16th July 1999 the Claimant did not have the requisite knowledge until he saw his psychiatrist on the 31st July 1999. The Court of Appeal did not positively identify the date of the expert’s report as the date of knowledge, but expressed itself as finding that statutory awareness had not arisen before that date.
HELD:-
His Honour Judge Hawkesworth said that as a matter of strict statutory construction he did not find it impossible to interpret section 11 subsections 3 and 4 together with section 14 sub section 1 as precluding a date of knowledge after the date of issue. Spargo v. North Essex District Health Authority [1997] BIQR 235 had illustrated that the date when a Claimant visits his or her solicitor may be and is generally crucial in demonstrating that the claimant has the necessary knowledge. The judge quoted the dicta of Lord Justice Brooke – a claimant may either be in the state of mind of firm belief that he has a claim, or he may be in the state of mind where he is unsure and needs to check with an expert. He did not consider that the Claimant’s replies in this case were incapable of success and should be struck out.
Furthermore the judge did not think that the Court should be precluded from determining the section 14 issue on an alternative basis. It was in fact very rare that the Claimant say or the court can say that a particular date is the crucial date. It may only be possible to make a negative finding that statutory knowledge was never obtained at all before the issue of proceedings.
The decision of the Court of Appeal in Bryn Alyn must be central in determining the approach now required by a court of first instance. The only issue on liability was that of systemic negligence. It was agreed that the assault claims were statute barred. In this case, there had been a preliminary hearing on limitation where the issues were limited to section 14 of the Limitation Act 1980 and section 33. The Claimants had given evidence together with some lay supporting evidence and psychiatric/psychological experts. The Defendants had given evidence on the issue of the availability of records.
Judge Hawkesworth said that the disposal of a case by way of preliminary issue of limitation had been urged upon courts by the Court of Appeal in Bryn Alyn. In this case he considered on balance that the preliminary hearing had been of benefit. He turned to each individual case.
A’s Case
The Claimant was born on the 25th May 1965 and suffered abuse at three homes run by the Defendants between the age of 11 and 15. She saw the police in 1997 and made a statement on the 20th November 1997 and an application to the CICA was dated 15th September 1997. Her husband gave evidence and he said that it was not until 1997 that he first heard his wife’s full account of being brought up in residential homes. A then approached a firm in Leeds who lodged her application to the CICA. In 1999 her case was transferred to a new firm of solicitors, Jordan’s of Dewsbury. The solicitor in question, Mr David Greenwood had produced a statement stating that he had become aware of the police investigation which had been running since 1996/7 and was “concerned that limitation could be an issue which precluded claims if they were not brought relatively quickly”. On that basis the police had agreed to give his name to a number of complainants (who had potential claims) although they were not in favour of proceedings being issued whilst the prosecution was in progress. Mr Greenwood took as his starting point the date on which first contact was made by the police.
Judge Hawkesworth went on to consider the evidence of the psychiatrists. He had not difficulty in accepting her account that she blocked out her experiences in relation to the abuse that she suffered and did not identify her problems as arising from the nature of the abuse itself. However while she was conscious that what she had been subject to was wrong, and while her experiences undoubtedly made her angry, he could not equate that to knowledge of significant injury in the context of a claim of this kind. The judge found that A did not have knowledge until at the earliest the month of August 1997 when she made an application to the CICA and when it appeared that she realised that her treatment in residential care could have resulted in psychological injury.
Whether and to what extent it had so resulted in psychological injury, Judge Hawkesworth did not consider that A could have known fully until she read her psychologist’s report. He found it impossible to conclude that the Claimant herself would have been able to attribute her long term psychological damage to her experiences in care rather than her experiences pre-dating care until she saw her psychologist’s report in October 2000.
B’s Case
This Claimant was born on the 28th August 1967 and was 21 years on the 28th August 1988. His claim was issued on the 24th May 2000. The sexual and physical abuse of which he complained took place about twenty two years ago at the time of the hearing. He suffered post traumatic stress disorder. There were discrepancies in his evidence, which made it difficult for the psychiatrists to reach an opinion. However the judge felt able to reach a conclusion. The impetus for his bringing of the proceedings came from an article seen by him in a newspaper. He gave a statement in September 1997. The judge accepted that his childhood experiences were put to the back of his mind and no long term effects were known to him until his psychologist reported in November 2002, although proceedings had been issued beforehand.
K’s Case
This claim was brought on behalf of the estate of the Claimant, who died in prison on the 4th September 2004 aged 32. He suffered physical abuse. In his statement, he talked about the effects on his life and how he was unable to make a complaint, due to his mistrust of police and social workers. He did not realise that he could do anything against the staff but he was told by the police after the criminal trial of his two abusers that he could take action against the Defendants. He contacted his present solicitors in December 1999 and proceedings were issued in October 2000. The judge considered the medical evidence from both Claimant and Defendant, which supported the Claimant’s statement of why he had decided to make a claim at this stage. Again the judge found that the Claimant did not have statutory knowledge of the significance of his injury until the psychological report of Miss Cameron (the Claimant’s expert) was available to him.
H’s Case
This Claimant was born on the 21st May 1973. Proceedings were issued on the 24th May 2000 and a psychological report was obtained from Miss Cameron in January 2002. The Claimant’s witness statement was signed on the 16th July 2000 and it described a number of physical assaults, which took place over a period of 2 ½ months at a children’s home. The Claimant said that he had no idea that he should report the matter to anyone. The Defendant’s counsel said that the pleaded date of knowledge could not be correct.
There was an issue as to what affect the 2 ½ months in the children’s home had on the Claimant’s life. Alcohol and drugs was clearly a predominant feature of his life although lately he had turned his life around. Miss Cameron, the Claimant’s psychologist conceded in cross examination that the Claimant probably did not have a significant psychiatric injury from his time in care. The judge considered that where the Claimant’s own expert witness was not herself convinced that the Claimant had suffered any significant psychiatric injury, the claim could not succeed on its merits in any event and it would illogical to hold that the Claimant had knowledge of a significant injury, if such injury could not be attributable to the matters about which he now claimed.
The Claimant’s counsel referred to one case in Bryn Alyn “MCK” where there had been sexual assault but no evidence of psychiatric damage. The Court of Appeal had increased the trial judge’s award from £5,000 to £7,500. However the difference between this case and MCK was that this Claimant had suffered a severe unrelated behavioural and personality disorder compounded by drug and alcohol abuse. There was no basis on which those problems could be related to the alleged abuse. Therefore the court would strike out his case under CPR 3.4 on the grounds that he had no realistic prospect of proving that he had suffered damage entitling him to compensation.
G’s Case
G was born on the 11th November 1974 and a resident at a children’s home for six weeks in 1981. As a result of the physical beating and verbal abuse that went on at the home, he suffered from prolonged enuresis. Prior to being contacted by the police, he had never disclosed the physical abuse that he had sustained. His psychologist, Miss Cameron dealt with the issue of non disclosure in some detail. She said that when the police contacted G, it was the first time that someone in authority communicated to him that the treatment he received was wrong and that he had a right to complain about it. After the interview, he had suffered a brief re-emergence of enuresis.
The judge held that the contact with the police enable the Claimant to view his psychiatric injury and distress which he had suffered in care as being significant in the statutory sense. Whether the prolonged enuresis could be attributed to his time in care and the alleged abuse could not be resolved at this hearing. However the date of knowledge would be put at around May 1998, and accordingly his claim was not statute barred.
Section 33 of the Limitation Act 1980
The court did not deem it necessary to consider exercising its discretion under section 33.
FACTS:-
This judgement concerned five lead cases, out of a group of seventeen claims outstanding in a group action relating to abuse at eleven children’s homes run the Defendant. Most of those claims had by the time of the judgement been settled and those that remained unresolved had been stayed, pending the outcome of the lead cases. The Claimants in the five cases had all been subject to alleged abuse in the 1980’s, with the exception of one A, who was in care during the 1970’s. The action had come from a police investigation “Operation Clyde”. Statements had been taken in 1997 and 1998. The Claimants were advised to contact solicitors or were referred to their current solicitors who issued proceedings in batches on a number of dates in the year 2000. A group litigation order was made on the 31st August 2001.
The Claimant sought to rely upon a date of knowledge for the purposes of section 14 of the Limitation Act, which post dated the issue of the claim form, being the date when their expert’s report, in each case from a clinical psychologist, was seen by them. Therefore the dates of issue preceded the date of knowledge as follows:-
Date of issue
A – 24th May 2000
B – 24th May 2000
H – 24th May 2000
K – 30th October 2000
G – 30th October 2000
Date of knowledge
A – 5th October 2000
B – 22nd November 2002
H – 26th January 2002
K – 29th July 2002
G – 3rd September 2001
Particulars of claim were served in April 2003 and made no reference to limitation. The Defences raised section 2 in respect of the allegations of assault, section 11 in respect of the allegations of negligence and also that it would not be equitable to allow the actions to proceed under section 33. Replies were then served by the Claimants made the assertion “The Claimant will contend that her date of knowledge was less than three years prior to the commencement of these proceedings.”
The Defendant’s counsel submitted that the Claimants were obliged to identify in their pleaded case a particular date rather than to assert generally that the date of knowledge was within the three years prior to the issue of proceedings. Having done so, the Claimants were tied to that date since the date pleaded could not by statutory definition be a date of knowledge within the meaning of section 14 and the case in its reliance upon this provision was bound to fail. He relied upon the case of Nash and Eli Lilley [1993] 1 WLR 782 where the court had said that it had difficulty in perceiving how in any case where a claimant has sought advice and taken proceedings, it can rightly be held that the claimant had not then had relevant knowledge.
The Claimants’ counsel had pointed to one of the cases in KR & Others v Bryn Alyn Community Holdings Limited in Liquidation & Another [2003] 3 WLR 107 (“KR”) where although proceedings were issued on the 16th July 1999 the Claimant did not have the requisite knowledge until he saw his psychiatrist on the 31st July 1999. The Court of Appeal did not positively identify the date of the expert’s report as the date of knowledge, but expressed itself as finding that statutory awareness had not arisen before that date.
HELD:-
His Honour Judge Hawkesworth said that as a matter of strict statutory construction he did not find it impossible to interpret section 11 subsections 3 and 4 together with section 14 sub section 1 as precluding a date of knowledge after the date of issue. Spargo v. North Essex District Health Authority [1997] BIQR 235 had illustrated that the date when a Claimant visits his or her solicitor may be and is generally crucial in demonstrating that the claimant has the necessary knowledge. The judge quoted the dicta of Lord Justice Brooke – a claimant may either be in the state of mind of firm belief that he has a claim, or he may be in the state of mind where he is unsure and needs to check with an expert. He did not consider that the Claimant’s replies in this case were incapable of success and should be struck out.
Furthermore the judge did not think that the Court should be precluded from determining the section 14 issue on an alternative basis. It was in fact very rare that the Claimant say or the court can say that a particular date is the crucial date. It may only be possible to make a negative finding that statutory knowledge was never obtained at all before the issue of proceedings.
The decision of the Court of Appeal in Bryn Alyn must be central in determining the approach now required by a court of first instance. The only issue on liability was that of systemic negligence. It was agreed that the assault claims were statute barred. In this case, there had been a preliminary hearing on limitation where the issues were limited to section 14 of the Limitation Act 1980 and section 33. The Claimants had given evidence together with some lay supporting evidence and psychiatric/psychological experts. The Defendants had given evidence on the issue of the availability of records.
Judge Hawkesworth said that the disposal of a case by way of preliminary issue of limitation had been urged upon courts by the Court of Appeal in Bryn Alyn. In this case he considered on balance that the preliminary hearing had been of benefit. He turned to each individual case.
A’s Case
The Claimant was born on the 25th May 1965 and suffered abuse at three homes run by the Defendants between the age of 11 and 15. She saw the police in 1997 and made a statement on the 20th November 1997 and an application to the CICA was dated 15th September 1997. Her husband gave evidence and he said that it was not until 1997 that he first heard his wife’s full account of being brought up in residential homes. A then approached a firm in Leeds who lodged her application to the CICA. In 1999 her case was transferred to a new firm of solicitors, Jordan’s of Dewsbury. The solicitor in question, Mr David Greenwood had produced a statement stating that he had become aware of the police investigation which had been running since 1996/7 and was “concerned that limitation could be an issue which precluded claims if they were not brought relatively quickly”. On that basis the police had agreed to give his name to a number of complainants (who had potential claims) although they were not in favour of proceedings being issued whilst the prosecution was in progress. Mr Greenwood took as his starting point the date on which first contact was made by the police.
Judge Hawkesworth went on to consider the evidence of the psychiatrists. He had not difficulty in accepting her account that she blocked out her experiences in relation to the abuse that she suffered and did not identify her problems as arising from the nature of the abuse itself. However while she was conscious that what she had been subject to was wrong, and while her experiences undoubtedly made her angry, he could not equate that to knowledge of significant injury in the context of a claim of this kind. The judge found that A did not have knowledge until at the earliest the month of August 1997 when she made an application to the CICA and when it appeared that she realised that her treatment in residential care could have resulted in psychological injury.
Whether and to what extent it had so resulted in psychological injury, Judge Hawkesworth did not consider that A could have known fully until she read her psychologist’s report. He found it impossible to conclude that the Claimant herself would have been able to attribute her long term psychological damage to her experiences in care rather than her experiences pre-dating care until she saw her psychologist’s report in October 2000.
B’s Case
This Claimant was born on the 28th August 1967 and was 21 years on the 28th August 1988. His claim was issued on the 24th May 2000. The sexual and physical abuse of which he complained took place about twenty two years ago at the time of the hearing. He suffered post traumatic stress disorder. There were discrepancies in his evidence, which made it difficult for the psychiatrists to reach an opinion. However the judge felt able to reach a conclusion. The impetus for his bringing of the proceedings came from an article seen by him in a newspaper. He gave a statement in September 1997. The judge accepted that his childhood experiences were put to the back of his mind and no long term effects were known to him until his psychologist reported in November 2002, although proceedings had been issued beforehand.
K’s Case
This claim was brought on behalf of the estate of the Claimant, who died in prison on the 4th September 2004 aged 32. He suffered physical abuse. In his statement, he talked about the effects on his life and how he was unable to make a complaint, due to his mistrust of police and social workers. He did not realise that he could do anything against the staff but he was told by the police after the criminal trial of his two abusers that he could take action against the Defendants. He contacted his present solicitors in December 1999 and proceedings were issued in October 2000. The judge considered the medical evidence from both Claimant and Defendant, which supported the Claimant’s statement of why he had decided to make a claim at this stage. Again the judge found that the Claimant did not have statutory knowledge of the significance of his injury until the psychological report of Miss Cameron (the Claimant’s expert) was available to him.
H’s Case
This Claimant was born on the 21st May 1973. Proceedings were issued on the 24th May 2000 and a psychological report was obtained from Miss Cameron in January 2002. The Claimant’s witness statement was signed on the 16th July 2000 and it described a number of physical assaults, which took place over a period of 2 ½ months at a children’s home. The Claimant said that he had no idea that he should report the matter to anyone. The Defendant’s counsel said that the pleaded date of knowledge could not be correct.
There was an issue as to what affect the 2 ½ months in the children’s home had on the Claimant’s life. Alcohol and drugs was clearly a predominant feature of his life although lately he had turned his life around. Miss Cameron, the Claimant’s psychologist conceded in cross examination that the Claimant probably did not have a significant psychiatric injury from his time in care. The judge considered that where the Claimant’s own expert witness was not herself convinced that the Claimant had suffered any significant psychiatric injury, the claim could not succeed on its merits in any event and it would illogical to hold that the Claimant had knowledge of a significant injury, if such injury could not be attributable to the matters about which he now claimed.
The Claimant’s counsel referred to one case in Bryn Alyn “MCK” where there had been sexual assault but no evidence of psychiatric damage. The Court of Appeal had increased the trial judge’s award from £5,000 to £7,500. However the difference between this case and MCK was that this Claimant had suffered a severe unrelated behavioural and personality disorder compounded by drug and alcohol abuse. There was no basis on which those problems could be related to the alleged abuse. Therefore the court would strike out his case under CPR 3.4 on the grounds that he had no realistic prospect of proving that he had suffered damage entitling him to compensation.
G’s Case
G was born on the 11th November 1974 and a resident at a children’s home for six weeks in 1981. As a result of the physical beating and verbal abuse that went on at the home, he suffered from prolonged enuresis. Prior to being contacted by the police, he had never disclosed the physical abuse that he had sustained. His psychologist, Miss Cameron dealt with the issue of non disclosure in some detail. She said that when the police contacted G, it was the first time that someone in authority communicated to him that the treatment he received was wrong and that he had a right to complain about it. After the interview, he had suffered a brief re-emergence of enuresis.
The judge held that the contact with the police enable the Claimant to view his psychiatric injury and distress which he had suffered in care as being significant in the statutory sense. Whether the prolonged enuresis could be attributed to his time in care and the alleged abuse could not be resolved at this hearing. However the date of knowledge would be put at around May 1998, and accordingly his claim was not statute barred.
Section 33 of the Limitation Act 1980
The court did not deem it necessary to consider exercising its discretion under section 33.