THOMPSON V ARCHBISHOP OF LIVERPOOL AND OTHERS [2009] EWCA CIV 1115
FACTS:-
The Claimant was at a Roman Catholic boarding school between September 1978 and December 1979. He alleged sexual assault by two priests and a music teacher. He alleged negligence and trespass against the person. The Defendants made an application for the case to be heard by way of preliminary issue on limitation, which application was refused by Master Rose. It was agreed by all parties that the issue in this case on limitation would be that of section 33 of the Limitation Act 1980. The Defendants appealed to Mr Justice McKay who in Thompson v Archbishop of Liverpool and Others Unreported 19th December 2008 Justice McKay confirmed the decision of the Master. The Defendants made an application for permission to appeal to the Court of Appeal.
JUDGMENT
Lord Justice Jacob said that pursuant to Rule 52.13, permission should only be given to appeal if the appeal raised an important point of principle or practice, or there was some other compelling reason for the Court of Appeal to hear it.
At any preliminary issue it would be necessary to look at all the circumstances of the case, therefore which included matters such as the duration of any disability of the Claimant after the date of accrual of the cause of action, the extent to which the Claimant acted promptly once he knew whether or not the act of omission of the Defendant might give rise to an action and a number of other matters. In short any preliminary issue would involve going into quite a bit about the state of and knowledge of the Claimant.
The Claimant had particular regard to the fact that the Claimant already had considerable mental impairment.
The Defendants’ counsel argued that there was a need for consistency in deciding whether there should be a preliminary issue on limitation. In the case of KR v Bryn Alyn [2003] QB 1441 the Court of Appeal indicated that the judge should strain to hold a preliminary issue trial wherever possible.
Jacob LJ said that both the Master and McKay J were conscious of that principle. The Master had felt that the real danger to this particular Claimant was the effect of having to give evidence twice. The difference between a trial on a preliminary issue (one day) and a full trial (three days) would not be that great. There was also no material before the court suggesting that the Defendants would be in real difficulty. One of the alleged abuser had disappeared but the other two were alive. It would be difficult to believe that even though it was such a long time ago, there would not be memories clear one way or the other.
There was not very much experience of full trials where the limitation point was involved. That was significant because it was difficult for courts to come to a consistent line without experience of each of the two possible routes. Jacob J was not persuaded that this particular case was an appropriate vehicle for raising the general question of trial on preliminary issue.
FACTS:-
The Claimant was at a Roman Catholic boarding school between September 1978 and December 1979. He alleged sexual assault by two priests and a music teacher. He alleged negligence and trespass against the person. The Defendants made an application for the case to be heard by way of preliminary issue on limitation, which application was refused by Master Rose. It was agreed by all parties that the issue in this case on limitation would be that of section 33 of the Limitation Act 1980. The Defendants appealed to Mr Justice McKay who in Thompson v Archbishop of Liverpool and Others Unreported 19th December 2008 Justice McKay confirmed the decision of the Master. The Defendants made an application for permission to appeal to the Court of Appeal.
JUDGMENT
Lord Justice Jacob said that pursuant to Rule 52.13, permission should only be given to appeal if the appeal raised an important point of principle or practice, or there was some other compelling reason for the Court of Appeal to hear it.
At any preliminary issue it would be necessary to look at all the circumstances of the case, therefore which included matters such as the duration of any disability of the Claimant after the date of accrual of the cause of action, the extent to which the Claimant acted promptly once he knew whether or not the act of omission of the Defendant might give rise to an action and a number of other matters. In short any preliminary issue would involve going into quite a bit about the state of and knowledge of the Claimant.
The Claimant had particular regard to the fact that the Claimant already had considerable mental impairment.
The Defendants’ counsel argued that there was a need for consistency in deciding whether there should be a preliminary issue on limitation. In the case of KR v Bryn Alyn [2003] QB 1441 the Court of Appeal indicated that the judge should strain to hold a preliminary issue trial wherever possible.
Jacob LJ said that both the Master and McKay J were conscious of that principle. The Master had felt that the real danger to this particular Claimant was the effect of having to give evidence twice. The difference between a trial on a preliminary issue (one day) and a full trial (three days) would not be that great. There was also no material before the court suggesting that the Defendants would be in real difficulty. One of the alleged abuser had disappeared but the other two were alive. It would be difficult to believe that even though it was such a long time ago, there would not be memories clear one way or the other.
There was not very much experience of full trials where the limitation point was involved. That was significant because it was difficult for courts to come to a consistent line without experience of each of the two possible routes. Jacob J was not persuaded that this particular case was an appropriate vehicle for raising the general question of trial on preliminary issue.