TCD V HARROW COUNCIL, WORCESTERSHIRE COUNTY COUNCIL, BIRMINGHAM CITY COUNCIL [2008] EWHC 3048 (QB)
FACTS:-
The Claimant was a lady who was nearly 42 years old and her allegations of abuse related to the period between 1975 and 1981, when she was 8 to 14. The Claimant resided in the jurisdiction of the First Defendant up to November 1977. Between about November 1977 and January 1979 she lived in Redditch, within the area of the Second Defendant. Thereafter to the end of the material period (1981) she lived in the Third Defendant’s district.
The Claimant was allowed to live with a man who had convictions for sexual offences going back to the early 1960’s. He began abusing the Claimant on her eighth birthday and pleaded guilty to indecent assault in December 1977. However he was put on probation and then returned to the family home. The abuse continued until the Claimant reported the matter in October 1981 whereupon the abuser was convicted in July 1982.
The Claimant received compensation from the Criminal Injuries Compensation Board in 1985.
Proceedings were begun against the Defendants in 2006 following an agreed “limitation holiday.” The sole issue before the court was whether or not the claims were statute barred.
HELD:-
Mr Justice Eady said that the two question before him were:-
Justice Eady looked at sections 11 and 14 of the 1980 Act, which defined “the date of knowledge” from which the three year limitation period might run. He also looked at Section 33 and the recent case of A v Hoare [2008] 1 AC 844. This was one of a series of conjoined appeals, of which one, Young v Catholic Care (Diocese of Leeds) would appear to be closest to this one.
Section 14
In relation to section 14, the critical question was the nature of the Claimant’s knowledge. The authorities made it clear that the Claimant must be shown to have had knowledge of the factual allegations underlying her claim in respect of each of the Defendants. It was clear that she knew that she was abused from the outset in 1975, and that she knew that what was done to her was unlawful by December 1977.
However it was necessary (applying the case of Dobbie v Medway Health Authority [1994] 1 WLR 1234) to show that the Claimant had at least some degree of awareness that the various local authorities would have had relevant to her plight by virtue of child welfare responsibilities. The Claimant had no recall of any early visits by social workers. She remembered a brief conversation with her abuser’s probation officer at the end of 1979, and had been placed on the “at risk” register in July 1979 but her name was removed for reasons that were unclear. There had also been concern expressed in 1981 at a case conference at the decision to remove her name from the Child Abuse Register. In July 1982 the judge at the Crown Court trial was critical of social services. By this time, the Claimant was 15 years old.
Eady J said that she could not be expected at the age of 15 to have taken responsibility for suing any of the local authorities. However by no later than the age of 15, she was aware of the child welfare responsibilities of local authorities in broad terms, and yet put no complaint on the record against any of them until she was 37. The Claimant said that she only discovered the extent of the Defendants’ knowledge of her abuser’s criminal record from the 1960’s when she saw her written records.
Nonetheless it was clear that she knew of the conviction of indecent assault on herself in December 1977. Eady J said that it was surely that stark fact which would ring the loudest warning bells and he outlined a number of points that suggested that she had knowledge by the time she attained her majority on the 28th January 1985. These included:-
Eady J concluded that the Claimant was fixed with knowledge at least from the time of attaining her majority. It could be safely said that she knew enough to make it reasonable for her to begin to investigate whether or not she had a case against any of the relevant local authorities (Broadly-Guy v Clapham [1994] 4 All ER 439).
Section 33 - Harrow Council
The Claimant had gone to live with the abuser in December 1969 by way of family arrangement. In December 1971, Harrow Council received an application from the abuser to adopt the Claimant and her brother. The adoption was formally granted in June 1972 and one of the primary criticisms of the First Defendant related to the advice it had given at that time to the court, which granted the adoption. In fact it was known that Harrow Council had grave concerns about the adoption, but the crucial report detailing its advice was missing. Eady J said that this missing report could well have been critical to the issues both of breach of duty and causation of damage.
One of the disadvantages from which the First Defendant suffered, was that running logs of the period were missing. There was in the judgement of Eady J, very serious prejudice to the First Defendant brought about largely by the long delay. There were no relevant witnesses available to offer any cogent recollection of these events.
In relation to the Claimant’s reasons for delay, Eady J went back to the points made in relation to the Claimant’s state of knowledge. He did not feel that the Claimant could be criticised for not confronting some aspects of the abuse, but that was not a complete answer to the issue of whether it was still possible to have a fair trial.
The Defendants all relied on the explanation given by the Claimant to their psychiatrist to the effect that she did not want to bring a claim until her children were old enough. The problem there was that this had been a deliberate decision taken by the Claimant, rather than something that was outside her control.
Although the discretion was unfettered, the court should never lose sight of the public policy considerations underlying the legislative regime governing limitation periods. There was no justification for imposing on this Defendant (Harrow Council) a trial in which the information had been significantly depleted.
Section 33 - Worcestershire County Council
The involvement of this Defendant with the Claimant was far less. She had been between November 1977 and February 1979 in the same household as the abuser for 33 days, although there had been fortnightly access visits. The records showed that the Claimant’s interests were monitored. There was no evidential basis on which it could be suggested that the Claimant should have been taken into care.
The Second Defendant’s counsel had submitted that the claim had no realistic prospect of success. There would be no point in dis-applying the limitation period because no case of negligence could be established on the available evidence. That was a perfectly sound argument.
There was only one witness who was involved at the time with the Claimant, and she had only a vague recollection. The Defendant was bound to be at a significant disadvantage. Eady J said that there was no sufficient evidence of a breach of duty such that justice required disapplication of the limitation period.
Section 33 – Birmingham City Council
The primary case here rested in the period from February 1979 to October 1981. The Claimant alleged that she should have been removed from Hayes’ care at some point significantly earlier than October 1981. Eady J said that where there appeared to be a strong prima facie case against a Defendant, particularly applying modern standards and criteria, it was all the more important that the Defendant should have the opportunity of fully investigating the case and explaining its reasoning.
The Third Defendant had argued that if the claim had been brought at an earlier date, when the position was governed by the House of Lords decision in X v Bedfordshire County Council [1995] 2 AC 633, it would have had a defence on the basis that no duty of care was owed to the Claimant. As the law had now changed, the Third Defendant was prejudiced by the passage of time. Eady J said that he did not need to decide that point in the circumstances of the case.
Another point taken by the Third Defendant was that decisions whether or not to take children into care could not be reviewed by way of a claim for negligence. Reliance was placed upon the words of Lord Phillips in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151 (para 49) who said that the effect of X v Bedfordshire was now reduced to a “core proposition” i.e. that decisions made whether to take a child into care were not reviewable in negligence.
The Claimant’s counsel countered that point by saying that the “core proposition” had been overtaken by events. In any event Lord Phillips in D v East Berkshire had said at paragraph 84 of his judgment that it would no longer be legitimate to rule that, as a matter of law, no common law duty of care was owed to a child in the pursuit of care proceedings. It was possible (according to Lord Phillips) that there might be factual situations where it was not just, fair and reasonable to impose a duty of care, but each case would fall to be determined on its own facts.
Eady J said that there was a tension between the two paragraphs of Lord Phillips’ judgment (paragraphs 49 and 84) but he would proceed on the basis that the Claimant’s counsel’s submissions were correct.
In this case there was evidence as to the considerable efforts made to track down witnesses and documents. However the upshot was that much had become untraceable. Eady J had no doubt that the Third Defendant would be significantly hampered in their task through gaps in the documentation and lack of personnel. Therefore a trial of the issues was not going to be possible.
Therefore the section 33 discretion would not be exercised in the Claimant’s favour.
FACTS:-
The Claimant was a lady who was nearly 42 years old and her allegations of abuse related to the period between 1975 and 1981, when she was 8 to 14. The Claimant resided in the jurisdiction of the First Defendant up to November 1977. Between about November 1977 and January 1979 she lived in Redditch, within the area of the Second Defendant. Thereafter to the end of the material period (1981) she lived in the Third Defendant’s district.
The Claimant was allowed to live with a man who had convictions for sexual offences going back to the early 1960’s. He began abusing the Claimant on her eighth birthday and pleaded guilty to indecent assault in December 1977. However he was put on probation and then returned to the family home. The abuse continued until the Claimant reported the matter in October 1981 whereupon the abuser was convicted in July 1982.
The Claimant received compensation from the Criminal Injuries Compensation Board in 1985.
Proceedings were begun against the Defendants in 2006 following an agreed “limitation holiday.” The sole issue before the court was whether or not the claims were statute barred.
HELD:-
Mr Justice Eady said that the two question before him were:-
- Whether the Claimant had relevant knowledge for the purposes of section 14 of the Limitation Act 1980.
- Whether, if she did, the court should exercise its discretion under section 33 of the 1980 Act to allow the claim through.
Justice Eady looked at sections 11 and 14 of the 1980 Act, which defined “the date of knowledge” from which the three year limitation period might run. He also looked at Section 33 and the recent case of A v Hoare [2008] 1 AC 844. This was one of a series of conjoined appeals, of which one, Young v Catholic Care (Diocese of Leeds) would appear to be closest to this one.
Section 14
In relation to section 14, the critical question was the nature of the Claimant’s knowledge. The authorities made it clear that the Claimant must be shown to have had knowledge of the factual allegations underlying her claim in respect of each of the Defendants. It was clear that she knew that she was abused from the outset in 1975, and that she knew that what was done to her was unlawful by December 1977.
However it was necessary (applying the case of Dobbie v Medway Health Authority [1994] 1 WLR 1234) to show that the Claimant had at least some degree of awareness that the various local authorities would have had relevant to her plight by virtue of child welfare responsibilities. The Claimant had no recall of any early visits by social workers. She remembered a brief conversation with her abuser’s probation officer at the end of 1979, and had been placed on the “at risk” register in July 1979 but her name was removed for reasons that were unclear. There had also been concern expressed in 1981 at a case conference at the decision to remove her name from the Child Abuse Register. In July 1982 the judge at the Crown Court trial was critical of social services. By this time, the Claimant was 15 years old.
Eady J said that she could not be expected at the age of 15 to have taken responsibility for suing any of the local authorities. However by no later than the age of 15, she was aware of the child welfare responsibilities of local authorities in broad terms, and yet put no complaint on the record against any of them until she was 37. The Claimant said that she only discovered the extent of the Defendants’ knowledge of her abuser’s criminal record from the 1960’s when she saw her written records.
Nonetheless it was clear that she knew of the conviction of indecent assault on herself in December 1977. Eady J said that it was surely that stark fact which would ring the loudest warning bells and he outlined a number of points that suggested that she had knowledge by the time she attained her majority on the 28th January 1985. These included:-
- She was abused from her eight birthday by her adoptive father and later raped
- He had been convicted of indecently assaulting her in December 1977
- The Claimant was aware of family rumours about previous offences
- The judge at the rape trial highlighted the failures of at least one social services department
- She was not removed from the abuser’s care until October 1981
- She suffered continuing trauma as a result of the abuse over a long period of time
- She knew that she had lived at various addresses and could have established the identities of the relevant local authorities.
Eady J concluded that the Claimant was fixed with knowledge at least from the time of attaining her majority. It could be safely said that she knew enough to make it reasonable for her to begin to investigate whether or not she had a case against any of the relevant local authorities (Broadly-Guy v Clapham [1994] 4 All ER 439).
Section 33 - Harrow Council
The Claimant had gone to live with the abuser in December 1969 by way of family arrangement. In December 1971, Harrow Council received an application from the abuser to adopt the Claimant and her brother. The adoption was formally granted in June 1972 and one of the primary criticisms of the First Defendant related to the advice it had given at that time to the court, which granted the adoption. In fact it was known that Harrow Council had grave concerns about the adoption, but the crucial report detailing its advice was missing. Eady J said that this missing report could well have been critical to the issues both of breach of duty and causation of damage.
One of the disadvantages from which the First Defendant suffered, was that running logs of the period were missing. There was in the judgement of Eady J, very serious prejudice to the First Defendant brought about largely by the long delay. There were no relevant witnesses available to offer any cogent recollection of these events.
In relation to the Claimant’s reasons for delay, Eady J went back to the points made in relation to the Claimant’s state of knowledge. He did not feel that the Claimant could be criticised for not confronting some aspects of the abuse, but that was not a complete answer to the issue of whether it was still possible to have a fair trial.
The Defendants all relied on the explanation given by the Claimant to their psychiatrist to the effect that she did not want to bring a claim until her children were old enough. The problem there was that this had been a deliberate decision taken by the Claimant, rather than something that was outside her control.
Although the discretion was unfettered, the court should never lose sight of the public policy considerations underlying the legislative regime governing limitation periods. There was no justification for imposing on this Defendant (Harrow Council) a trial in which the information had been significantly depleted.
Section 33 - Worcestershire County Council
The involvement of this Defendant with the Claimant was far less. She had been between November 1977 and February 1979 in the same household as the abuser for 33 days, although there had been fortnightly access visits. The records showed that the Claimant’s interests were monitored. There was no evidential basis on which it could be suggested that the Claimant should have been taken into care.
The Second Defendant’s counsel had submitted that the claim had no realistic prospect of success. There would be no point in dis-applying the limitation period because no case of negligence could be established on the available evidence. That was a perfectly sound argument.
There was only one witness who was involved at the time with the Claimant, and she had only a vague recollection. The Defendant was bound to be at a significant disadvantage. Eady J said that there was no sufficient evidence of a breach of duty such that justice required disapplication of the limitation period.
Section 33 – Birmingham City Council
The primary case here rested in the period from February 1979 to October 1981. The Claimant alleged that she should have been removed from Hayes’ care at some point significantly earlier than October 1981. Eady J said that where there appeared to be a strong prima facie case against a Defendant, particularly applying modern standards and criteria, it was all the more important that the Defendant should have the opportunity of fully investigating the case and explaining its reasoning.
The Third Defendant had argued that if the claim had been brought at an earlier date, when the position was governed by the House of Lords decision in X v Bedfordshire County Council [1995] 2 AC 633, it would have had a defence on the basis that no duty of care was owed to the Claimant. As the law had now changed, the Third Defendant was prejudiced by the passage of time. Eady J said that he did not need to decide that point in the circumstances of the case.
Another point taken by the Third Defendant was that decisions whether or not to take children into care could not be reviewed by way of a claim for negligence. Reliance was placed upon the words of Lord Phillips in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151 (para 49) who said that the effect of X v Bedfordshire was now reduced to a “core proposition” i.e. that decisions made whether to take a child into care were not reviewable in negligence.
The Claimant’s counsel countered that point by saying that the “core proposition” had been overtaken by events. In any event Lord Phillips in D v East Berkshire had said at paragraph 84 of his judgment that it would no longer be legitimate to rule that, as a matter of law, no common law duty of care was owed to a child in the pursuit of care proceedings. It was possible (according to Lord Phillips) that there might be factual situations where it was not just, fair and reasonable to impose a duty of care, but each case would fall to be determined on its own facts.
Eady J said that there was a tension between the two paragraphs of Lord Phillips’ judgment (paragraphs 49 and 84) but he would proceed on the basis that the Claimant’s counsel’s submissions were correct.
In this case there was evidence as to the considerable efforts made to track down witnesses and documents. However the upshot was that much had become untraceable. Eady J had no doubt that the Third Defendant would be significantly hampered in their task through gaps in the documentation and lack of personnel. Therefore a trial of the issues was not going to be possible.
Therefore the section 33 discretion would not be exercised in the Claimant’s favour.