LIMITATION: COURT DOES NOT EXERCISE SECTION 33 IN CASE CONCERNING ALLEGATIONS OF SEXUAL ABUSE: A CAUSE OF ACTION CANNOT BE PUT ON THE SHELF

August 20, 2018 · by · in Limitation, Personal Injury

This is the second post of the day on Section 33.  In Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus) [2018] EWHC 1895 (QB) the claimant was not successful. Mr Justice Nicol held that the claimant’s delay had had a major impact on the ability to hold a fair trial.  There are interesting observations on the relevance of the absence of insurance, also the irrelevance of the fact that the defendant was a charity.  The key point here was that the substantial delay caused difficulties for the defendant both in terms of defending on the issue of liability and also in relation to damages.

‘One cannot put a cause of action onto a shelf with a view to taking it down again sometime later in the indeterminate future when you feel like using it.’

THE CASE

The claimant’s case was that he had been sexually abused by a voluntary teacher in 1974-76 when he was aged 14-16.  That teacher had died in 1999.  The judge determined the limitation issue after a trial when the claimant, and others, gave evidence.

THE JUDGMENT ON THE SECTION 33 ISSUE

    1. I take this issue first. While it may be thought that, logically, the application to strike out should be dealt with first, it would be arid to devote time to that question: either the strike out application (if successful) or a refusal to disapply the limitation period would bring the claim to an end. While, of course, it is for the Defendant to establish that the claim should be struck out, it is for the Claimant to show that the primary limitation period should be disapplied.
    2. The Claimant’s cause of action against the Defendant is their vicarious responsibility for Riddle’s alleged assaults. An assault is formally classified as trespass to the person and is a tort. The assaults are said to have occurred in 1973 and 1974. At those times the relevant statute of limitation was the Limitation Act 1939. By s.2(1)(a) of that Act the period of limitation was 6 years from the date on which the cause of action accrued. However, at the time of the alleged assaults the Claimant was between 14 and 16 and by s.22 of the 1939 Act, time did not begin to run until he became an adult. Long before these limitation periods expired, Parliament passed the Limitation Act 1975.
    3. The 1975 Act added a series of sections to the Limitation Act 1939. Materially to the present claim these included what became ss.2A and 2D of the Limitation Act 1939.
    4. Section 2A provided:
‘(1) This section applies to any action for damage for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
(2) Section 2 of this Act shall not apply to an action to which this section applies.
(3) Subject to section 2D below, an action to which this section applies shall not be brought after the expiration of the period specified in subsections (4) and (5) below.
(4) … the said period is three years from –

(a) the date on which the cause of action accrued, or

(b) the date (if later) of the plaintiff’s knowledge.’

[subsections (6)-(8) concerned how the plaintiff’s date of knowledge was to be assessed.]
    1. What became s.2D of the Limitation Act 1939 said as follows:
‘(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –

(a) The provisions of section 2A.. prejudice the plaintiff or any person whom he represents, and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

The court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
…
(3) In acting under this section the court shall have regard to all the circumstances of the case and, in particular to –

(a) the length of, and the reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 2A…;

(c) the conduct of the defendant after the cause of action arose, including the extent to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.’

    1. By section 3 of the 1975 Act its provisions applied in relation to causes of action which had accrued before, as well as after the commencement of the Act (which was 1st August 1975). Accordingly, it applied to the Claimant’s causes of action which had accrued in 1973 and 1974.
    2. The statutory law on limitation has now been consolidated in the Limitation Act 1980. The primary limitation period for personal injuries is now contained in s.11 of the 1980 Act. The power to disapply the primary limitation period is now in s.33 of the 1980 Act. There is no material difference as between these provisions and the quotations which I have given for the 1939 Act as amended by the 1975 Act. As a result, the authorities on the 1980 Act are useful and, indeed, binding. But the transitional provisions of the 1980 Act (and, in particular Schedule 2 paragraph 8) provide that nothing in the 1980 Act enables any action to be brought which was barred by the Limitation Act 1939 before 1st August 1980. The primary limitation period set by s.2A expired in April 1979. The Limitation Act 1939 was itself repealed by the 1980 Act – see s.40(3) and Schedule 4, but the general savings provisions in the Interpretation Act 1978 s.16 would allow me still to exercise the power in the Limitation Act 1939 s.2D. Thus my task is, strictly speaking, to consider whether to exercise that power and I shall continue to refer to its terms.
    3. Section 2A only applied to claims for personal injuries. But even in such cases, it only applied if the claim was an ‘action for damage for negligence, nuisance or breach of duty’. The conventional view was that this phrase did not include claims for deliberate assaults or trespass to the person. That view was confirmed by the House of Lords in Stubbings v Webb [1993] AC 498. However, Stubbings v Webb was overruled by the House of Lords in 2008 in A v Hoare [2008] 1 AC 844.
    4. I have said that the Defendant, Father Martin Devenish, is sued in a representative capacity on behalf of the Order which, it is accepted, was vicariously liable for the acts of Riddle. That is a realistic concession in view of the current approach to vicarious liability in cases such as Lister v Hesley Hall Ltd. [2002] 1 AC 215, but that case is widely acknowledged to have represented a change in the approach of the courts to vicarious liability. Prior to Lister it would have been thought that an employee (such as Riddle here) who deliberately assaulted a person in his charge (such as the Claimant here) was acting contrary to the way his employer would have wished and in consequence the employer would not have been vicariously responsible.
    5. The Defendant acknowledges that I must apply the law as the House of Lords has declared it to be in Lister and Hoare. Mr Fewtrell (who made submissions on the authorities on behalf of the Defendant) submits that I should reject the Claimant’s argument that the earlier views were a good reason why the claim could not have been brought earlier than 2008. Mr Fewtrell argues that the House of Lords in each case followed the conventional course of declaring what the common law was and always had been. The law was applied retrospectively as well as prospectively. Indeed, it was for that reason that Mr Lister and the claimants in the A v Hoare group of cases were themselves able to take advantages of the newly declared principles. The Claimant could instead have been the pioneering litigant.
    6. But while Mr Fewtrell argued the Claimant could not rely on these changes to justify his delay, he submitted the Defendant could to demonstrate additional prejudice from the delay. Thus, he submitted, part of the prejudice to which the Defendant was exposed by the Claimant’s delay was that he could not resist vicarious responsibility on the pre-Lister view of an employer’s responsibility and was exposed to the possibility of the primary limitation period being disapplied which would not have been the case before A v Hoare.
    7. The idea that the common law (or the courts’ interpretation of legislation) is a constant and the (higher) courts do not change it may be something of a fiction, but it has important consequences. As Mr Fewtrell rightly said, it is the reason why the Claimant can invoke those principles now in relation to matters which occurred decades before the decisions in question. Lord Hoffman made the same point in Deutsche Morgan Grenfell Group plc v IRC [2007] 1 AC 558 at [23].
    8. However, the ‘heads I win, tails you lose’ approach advocated by Mr Fewtrell is unattractive. It can also lead to litigation being diverted into barren arguments as to just how novel a judicial decision has been. On both grounds I would need persuading that I am obliged to adopt Mr Fewtrell’s approach. In my view none of the authorities he cited supported it.
    9. A v Hoare also addressed the issue of determining the date of knowledge (now the Limitation Act 1980 s.14 but which is in materially the same terms in the legislation with which I am immediately concerned, namely Limitation Act 1939 s.2A(6)-(8)). I need not spend long on this because it was common ground that, for the purpose of these provisions, the Claimant was to be treated as having had sufficient knowledge when the assaults occurred. Since he was then 14-16, time did not begin to run until his 18th birthday which was on 27th April 1976. Consequently, it was common ground between the parties that the primary limitation period (i.e. that which would apply unless the discretion in s.2D of the 1975 Act was exercised in his favour) would have expired on 27th April 1979.
    10. The principles to be applied when considering the court’s powers under Limitation Act 1980 s.33 have been reviewed most conveniently in Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ at [42]. Both parties urged me to apply those principles and I do.
    11. From the other authorities which were cited to me, I venture to add the following:
i) Nominally, the Court has a discretion as to whether to disapply the primary limitation period even if it decides that the balance of equities favours the Claimant (‘ the court may…’), but as Burnett LJ commented in JL v Bowen [2017] EWCA Civ 82 at [18], if the Court reaches that conclusion the discretion could only be exercised one way.
ii) As Ms O’Rourke emphasised in closing, this is not a case where limitation has been tried as a preliminary issue, either on its own or in conjunction with liability and/or causation. I have held the whole trial and, as a result, I have evidence on all the issues that arise in the trial. I should take all of that into account in deciding whether the primary limitation period should be disapplied. I did not understand Mr Norris QC, on behalf of the Defendant, to disagree. However, in this context, the comments of Auld LJ in KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 are particularly apposite. He said at [74(vii)],

‘Where a judge determines the section 33 issue along with the substantive issues in the case, he 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. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay.’

iii) In addition, if I may say so, I found in this context the words of Burnettt LJ in JL v Bowen (above) at [26] to be particularly apposite. He said,

‘The logical fallacy which Lord Clarke MR was concerned with at [21] of the Nugent Care Society case [B v Nugent Care Society [2009] EWCA Civ 1451] and Auld LJ at [74(vii)] of the Bryn Alyn case was proceeding from a finding on the (necessarily partial) evidence heard that the claimant should succeed on the merits to the conclusion that it would be equitable to disapply the limitation period. That would be to overlook the possibility that, had the defendant been in a position to deploy evidence now lost to him, the outcome might have been different. The same logical fallacy is most unlikely to apply in the reverse situation, especially when the case depends upon the reliability of the claimant himself. That may be illustrated by a simple example. A claimant sues for personal injury 10 years after an alleged accident and seeks an order to disapply the limitation period of 3 years. The defendant has lost witnesses and records, but advances a defence that the accident did not occur. The judge concludes, without the lost evidence, that indeed the accident did not occur. The burden is on the claimant to prove that it would be equitable to disapply the limitation period having regard to the balance of prejudice. In those circumstances he would not be able to do so. There would be no purpose in extending the limitation period and it would not be equitable to do so. Similarly, a full exploration at trial, of, for example, the claimant’s reasons for delay may enable the judge to reach firm conclusions which could have been no more than provisional had limitation been resolved as a preliminary issue.’

iv) I canvassed with the parties the extent to which the limitation could be partially disapplied. Their common position, with which I agree, was that s.33 (and s.2D of the 1939 Act) allow a court to distinguish between different causes of action, but, so far as any single cause of action is concerned it is all or nothing: either the primary limitation period is disapplied or it is not. In the present case, Ms O’Rourke abandoned reliance on negligence at the start of the trial. In consequence, vicarious liability for trespass to the person is the only cause of action. Although, strictly, there are alleged to have been multiple such trespasses, no one has suggested that I could make different decisions regarding the disapplication of limitation as between them.
v) In deciding the balance of prejudice, I can also take into account any difficulty the defendant would now face in answering the claim for consequential damage (see for instance Carroll at [42(7)] ‘the defendant only deserves the obligation to pay damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount’ – my emphasis). At times in her closing submission Ms O’Rourke argued that, since I now had the expert evidence, I was well able to decide the issue of whether the Claimant had suffered PTSD as a result of the abuse. If the evidence of Professor Maden was to be preferred to Dr Kennedy, so be it. The Claimant would have lost his claim to have suffered PTSD, but that was no reason why he should not nonetheless have the limitation disapplied to his causes of action. He would still be entitled to general damages. In this sense she argued, there was scope for subdividing the claim even in relation to individual causes of action. In principle, I think she is right. But in this sense as well the ‘logical fallacy’ to which Burnett LJ referred applies. It would assist her only if, on the evidence I have heard, I thought it more likely than not that the Claimant lost this part of his claim for damages. That, of course, is not Ms O’Rourke’s primary position. She submits, on the contrary, that the Claimant’s heads of loss are all recoverable.
vi) Mr Fewtrell submitted that it was relevant that the Defendant was not insured. He was entitled to point to Horton v Sadler [2007] 1 AC 307 at [32] and Sayers v Hunters [2013] 1 WLR 1695 CA per Jackson LJ at [67] to this effect. The weight to be given to this factor, though, may depend on the Defendant’s ability to meet any damages out of its own resources. After all, some defendants choose to self-insure. The Defendant had a separate argument (to which I will return) as to its charitable status and the diversion of its resources from its charitable purposes. Here I am concerned to identify the principles which I should apply.
vii) A related question is whether the potential cost consequences of disapplying the primary limitation period were relevant. It is well known that costs can outstrip the amount of damages at issue. Both sides in the present case wished to emphasise the very high level of costs that had been incurred, not least in a trial that lasted 9 days. I though, do not think this is a proper matter to take into account. So far as the party’s own costs are concerned, it is relevant that these have already been incurred. As Ms O’Rourke emphasised in her closing submissions, this is not a case where limitation has been tried as a preliminary issue. The Defendant will not, therefore, be saved any of its own costs if I were to disapply the primary limitation period. My reluctance to take account of the potential liability to pay the other side’s costs has a different basis. To put it simply, costs follow the event; they should not determine the event. The Claimant will (or should have been) advised about the consequences of litigating a claim unsuccessfully. Both parties likewise will (or should have been) advised about the means to protect themselves from adverse costs orders through the CPR Part 36 procedure.
Limitation
The judge considered the arguments of each party in detail.
Whether the Claimant’s own evidence that the abuse took place is so unreliable that his claim fails in any event?
    1. I frame the question in this way to address the points made by Mr Norris about the inconsistencies in the Claimant’s evidence. However, I do so in the context of the central question as to whether the abuse occurred at all. If I were to conclude that on the evidence before me the Claimant was not abused, then, as Burnett LJ said in JL v Bowen, the claim would anyway fail and there would be no point in disapplying the primary limitation period. I set to one side, for the time being, what is claimed to be the consequential loss from the abuse, notably what is said to be the Claimant’s PTSD and loss of congenial employment as a priest and missionary.
    2. Mr Norris is entitled to say that the Claimant has not given a consistent account of when the abuse started, when it stopped or its precise nature.
    3. As to the start date, the Claimant told Dr Shapero that he was abused from age of 12 (and so from about 1970). He told Dr Hellin that the abuse began when he was 13 (and so from about 1971). The original Particulars of Claim alleged that the abuse began in 1972. He told Dr Kennedy that it began in February 1973 (when he was 14 years and 10 months old) which is the start date in the Claimant’s amended witness statement and in his Amended (and Re-Amended) Particulars of Claim.
    4. As to the end date, I accept the evidence of Father Pelucchi that the Claimant told him during his visit to Rome in 2011 that it had continued until 1974/5 when he would have been 16/17. Father Pelucchi’s evidence in this regard is supported by his contemporaneous notes. The Claimant told Dr Shapero that it went on until he was 15 (i.e. 1973-74). Dr Hellin was told that it continued until he was 15 (1974) which was the same information given to Dr Kennedy and Professor Maden. That was also the end date in the original and Amended Particulars of Claim.
    5. As to these dates, I accept that the diaries are likely to give the most accurate information. From these it can be seen that Riddle began teaching at Mirfield in February 1973. The abuse cannot have occurred before then. Mr Norris observed that, to Dr Hellin and in his amended witness statement, the Claimant said that he was pre-pubescent when the abuse started, suggesting that this was inconsistent with the abuse having begun when he was just short of his 15th birthday. I do not accept this argument. It is well known that there is considerable variation in the onset of puberty and I notice that in the Claimant’s diary for 26th September 1973 he wrote ‘taped my voice in soprano so I know what it sounded like before my voice breaks.’ It is also clear from the letters which I have quoted above, that Riddle left the school in the summer of 1974. The abuse cannot have continued beyond that point.
    6. Mr Norris drew attention to the differences in the accounts of the nature of the abuse which the Claimant has given to the different health professionals who have reported on him. There is, with respect to Mr Norris, little of substance in these matters. The Claimant has said consistently that Riddle incited him to touch Riddle’s genitals. Whether this was over or under Riddle’s underwear is not particularly material for present purposes. He has said that on more than one occasion Riddle digitally penetrated his anus. Whether that happened regularly, as he said to Professor Maden, or about a dozen times, as he said to Dr Shapero, is, in my view, immaterial for the issue that I am now considering.
    7. Mr Norris referred to other matters on which he submitted the Claimant had given unreliable evidence. I return to some of these matters below but, despite Mr Norris’s submissions, I would not conclude that the Claimant’s evidence as to the abuse occurring is so unreliable that the claim should fail in any event.
Conclusion on the significance of Riddle’s death
    1. I draw these strands together. The Claimant gave a credible account of the abuse which he says Riddle inflicted on him. His account is supported by evidence of what I accept could be characterised as ‘grooming’ by Riddle. The evidence of Father X and Christopher Speight was also credible and described abuse of a similar nature which they say they suffered at the hands of the same perpetrator. The letters from Riddle to the Claimant after his departure adopt a language of endearment which jars to modern ears and which Father Devenish agreed would have been unacceptable even in the 1970s. I also agree that it is significant that Riddle combined such language with religious references and imagery. Of course, when the letters were written, Riddle had left the school and the abuse had come to an end, but it is suggestive that the same combination may have been deployed while he was at the school. All of this is supportive of the Claimant’s case.
    2. But, and it is a major qualification, with Riddle’s death, the Defendant has been undeniably disadvantaged. Ms O’Rourke asked, perhaps rhetorically, ‘What could Riddle have said?’ He was unlikely to have admitted what would have been a crime and could not have been compelled to incriminate himself. And, she argued, how could he have denied the allegations in the face of such strong evidence?
    3. I do not accept this line of argument. I have agreed that there would have been a case for Riddle to answer; it may even be said that it would have been a strong case to answer, but on each occasion when the alleged abuse took place, there were only two people present: Riddle and the Claimant. When Ms O’Rourke asked her question, I was reminded of what Vice Chancellor Megarry said in John v Rees [1970] Ch. 345 at 402,
‘It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.” Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’
    1. Because Mr Norris could not take instructions from Riddle, he was inhibited in how he could cross-examine the Claimant (or Father X or Christopher Speight). Absent instructions or other evidence to contradict their accounts of abuse, it would have been professionally improper for Mr Norris to suggest that they were not telling the truth. Where (in the case of the Claimant) there was such evidence, he could and did so, but I accept this meant that the nature of the cross-examination was limited.
    2. Ms O’Rourke submitted that there had been other cases of historic sex abuse where the alleged abuser had died, but the court nonetheless decided to disapply the primary limitation period. I viewed such a submission with caution. Earlier decisions can give valuable guidance on the proper principles, but the application of those principles to the individual facts of the case are necessarily dependent on the whole corpus of facts and, inevitably those will vary from one case to another. This may be illustrated by one of the cases cited by Ms O’Rourke. In Raggett v Society of Jesus Trust 1929 for Roman Catholic Purposes [2010] EWCA Civ 1002 the Court of Appeal dismissed an appeal from a decision of Swift J. to disapply the primary limitation period in favour of a claimant who alleged that he had been sexually abused by a Jesuit priest at the Defendant’s Catholic college. The alleged abuser had died years before the claim had been brought. The appeal was primarily on the basis of the sequence in which the Judge had approached her task (she had considered first whether the abuse had occurred and had only then considered whether the primary limitation period should be disapplied). The Court of Appeal considered that such matters were for the Judge to decide in her discretion. The delay had been very great, but the Judge had considered that a fair trial was still possible. In upholding the decision, the Court of Appeal noted the ‘important’ observation by the Judge that the Defendant ‘had not seriously disputed the fact that [the deceased abuser] had been guilty of some abuse, in the form of filming the Claimant naked and fondling him sexually.’
    3. In the present case, the Defendant does not admit that Riddle abused the Claimant as he alleges.
    4. I have already quoted from the judgment of Burnett LJ in JL v Bowen (see above). It is also pertinent in this context to refer to what Lord Brown said in A v Hoare (above at [86]) and with which Lord Hoffmann, Lord Walker and Lord Carswell agreed),
[Diagram or picture not reproduced in HTML version – see original .rtf file to view diagram or picture]’86. Secondly, through the combined effect of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend on a number of factors, not least when the complaint was first made, and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary a fair trial (which must include a fair opportunity for the defendant to investigate the allegations – see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.’
    1. I conclude that, setting aside the other matters relied upon by Mr Norris, the Defendant is significantly prejudiced in the conduct of his defence because of the death of Riddle. To that extent, at least, the cogency of the evidence available is the poorer because of the lapse of time.
The absence of personnel records
    1. Father Devenish’s witness statement said, as I have already mentioned, that Riddle had been a retired teacher who had taught English and Geography at Mirfield on a voluntary basis. The statement continued,
‘For that reason the Verona Fathers do not have any personnel records or for that matter any other documents relating to Mr Riddle, for example, showing where he worked before he retired.’
It was put to Father Devenish that, even if the claim had been brought in 1979 there would have been no records for Riddle. Father Devenish responded that he did not know, the archives were moved around. He did not know if the records or documents had been lost.
    1. The Defendant is not therefore able to say with certainty, or even that it is more likely than not, that it would have had the assistance of documentary records about Riddle’s time at Mirfield if the claim had been brought within the primary limitation period. Ms O’Rourke is entitled to say that, despite the lengthy delay and even though Mirfield closed down in 1984, there are some records still in existence. Thus, for instance, there are still some of the Claimant’s school reports and some correspondence concerning his further dealings with the Order after he left Mirfield. But the Defendant is entitled to say that the absence of personnel records puts even greater emphasis on oral testimony and the difficulty of recollecting without the assistance of that contemporary documentation becomes the more acute with the passage of time.
The reasons for the delay
The Claimant’s explanations for the delay
    1. The interval between the expiry of the primary limitation period and the commencement of proceedings was very long, some 34 years. The Claimant has given a number of different reasons for this delay.
i) At least initially, he did not realise that what Riddle was doing to him was wrong, or how wrong it was.
ii) He felt shame about the intimate nature of the abuse and his sense of complicity in it. He therefore tried to suppress thoughts of the abuse after leaving Mirfield in 1975.
iii) It was only many years later that he felt secure enough to disclose the abuse to anyone. He did so in the 1990s to his friend and counsellor, Edward Smink.
iv) Also in the late 1990s he blurted out to his mother that he had been ‘molested at Mirfield’. His niece had also been present when he made this disclosure. In his book he says that this occurred in 1998. In his original Reply he said it took place in 2005 (which was also the date that Dr Shapero had given in his draft report). In his evidence, the Claimant said that Dr Shapero must have got the date wrong. The date in the original reply must, though, have come from himself, but it was a mistake. When he had made this disclosure, he said his mother had received the announcement in silence. The Claimant says that it was clear to him she desperately wanted to avoid discussing the subject. He did not raise it again. He said that he did not want to pollute her purity or to lead her to think that she had in any way been responsible for the abuse because she had sent him to Mirfield.
v) He said in his amended witness statement that he ‘could not bear the thought of seeking justice for the abuse while his mother was still alive even if I was to do so without her knowledge…I did not feel able to address the abuse I suffered while my mother was still alive.’
vi) He did see Father Pelucchi in Rome after his mother died in 2011.
vii) When Father Pelucchi wrote to him in November 2011, the Claimant wrote in his book, and told Dr Shapero, that he would not do anything hastily. He went on a holiday to East Africa and Australia and it was in early February 2012 when he began to look for solicitors and identified AO Advocates. As I have already noted, the letter before claim was written by them in March 2013 and the Claim Form was issued 4 days later.
viii) In her closing submissions Ms O’Rourke argued that a further reason why the Claimant did not bring a claim earlier was because he was ‘with Veronas till 1985 and needed their reference for Beda until 1986’. If this was one of the reasons, it does not feature in any of the Claimant’s three witness statements, nor was it given by him as a reason in his Reply or Amended Reply (which did plead his reasons for not litigating sooner). In his oral evidence he made only a passing reference to not complaining earlier ‘because I was with the Comboni Fathers.’ In any case, this would explain only a very small part of the delay.
The Defendant’s response to the Claimant’s explanations for the delay
    1. Mr Norris challenged several of these propositions. Thus:
i) In contrast with the Claimant saying that he did not realise that what Riddle was doing was wrong, Mr Norris refers to the Claimant’s book in which he wrote that, after the abuse, he would usually go to the chapel and berate himself with slaps to the face. On one occasion after he had been digitally penetrated by Riddle he says he defecated involuntarily in the playing fields. Mr Speight said that he had been warned off Riddle by the Claimant, and so the Claimant must have realised that what Riddle was doing was improper. The Claimant had also given different accounts of when he did realise that what Riddle had done to him was wrong. He told Dr Kennedy that it was not until his 20s that he felt what Riddle had done to him was really wrong. He told Dr Shapero that ‘I didn’t know it was wrong for another 20 years [which would have been when the Claimant was in his 30s].’ In his amended witness statement he said that it was ‘only in or around my early 40s that I came to realise the extent of the damage that the abuse at Mirfield has had on me.’ When asked about these discrepancies in evidence, the Claimant said that the significance of what had happened grew on him gradually. But he agreed that even by his 20s he knew that what Riddle had done was really wrong.
ii) Mr Norris questioned whether the Claimant’s mother would have been unsupportive had he taken action earlier. Mr Norris noted that in the Claimant’s book, he recounts that he told his mother that he had been raped by ‘Dave’, a trainee priest whom the Claimant’s mother knew. In his book he said she had been sympathetic to him then. In his evidence, the Claimant said that he would have liked to think that his mother would have been supportive but there were plenty of reasons to think she would not have been. His mother had been born in 1925 and her parents grew up in the Victorian era. They were imbued with a trust of the priesthood and the Catholic church. She would also have felt guilt for sending him to the school where he had suffered abuse.
iii) Mr Norris put to the Claimant that he had not in fact waited until his mother’s death before making his first approach to the Verona Fathers. On 23rd March 2010 (and so the year before her death) he had written to Father Sanchez Gonzalez, the Superior General of the Comboni Missionaries, asking to meet him in Rome ‘in mid-April to discuss some things from the past.’ He had received no reply by 30th March 2010 and the Claimant then wrote again and said, ‘I hope to be visiting mid April and would very much like to discuss something with you or your number 2.’ The following day, 1st April 2010, Father Sanchez replied and said that he would be willing to meet the Claimant on Saturday 17th April at 11.00am. The Claimant did not travel to Rome until the following year. When asked about this in his evidence, the Claimant said that in 2010 he had been doing no more than putting out feelers. In any case, if he had gone to Rome in 2010 it would have been a private matter between him and Father Sanchez.
iv) The Claimant had given the impression in his book that he had done nothing for several months after receiving Father Pelucchi’s letter of 29thNovember 2011. However, in an email dated 20th December 2011 he wrote to AO Advocates asking if they would advise him in relation to sexual (and physical and psychological) abuse at his religious boarding school. The solicitors had responded the following day and offered an appointment in a week’s time.
v) In RE v GE [2015] EWCA Civ 287 the Court of Appeal reviewed a decision by HHJ Harris QC (sitting as a Deputy Judge of the High Court) to refuse to disapply the primary limitation period for a claim for alleged sexual abuse of a girl by her father. In relation to part of the period of delay, Judge Harris had said (see [42] of the Court of Appeal’s decision),

‘One cannot put a cause of action onto a shelf with a view to taking it down again sometime later in the indeterminate future when you feel like using it.’

The Court of Appeal said that Judge Harris was entitled to adopt the approach which he did. In the present case, Mr Norris submitted that the Claimant’s approach had likewise been to leave his claim and take it down when it suited him. But that was not a course which assisted him in invoking the discretionary power of the court.
vi) There is no explanation for the delay between what is now known to have been the Claimant’s first contact with AO Advocates in December 2011 and their letter before claim in March 2013.
Reasons for delay: discussion
    1. There are cases of historic sex abuse where no action is taken for many years either because the victim does not appreciate that what was done was wrong, or because the perpetrator continues to exert influence over the victim, or because shame and embarrassment acts as an inhibitor to disclosure. None of these fully explain the very lengthy delay in the present case. By 1998 at the latest, the Claimant had recognised that he had been abused and had disclosed the abuse to a counsellor and to his mother.
    2. I am prepared to accept that the Claimant may have felt some concern about his mother’s reaction if he were to pursue a complaint against the Verona Fathers for Riddle’s actions. However, it is plain from the 2010 correspondence that he did not feel precluded from initiating a dialogue with the Verona Fathers while she was still alive. In the following year he wrote to Father Sanchez on 3rd February 2011. His mother was then still alive. She died on 26th April 2011. There is no satisfactory explanation for his failure to follow up on the 2010 approach until the following year or why, if he felt able to do what he did in 2010, he could not have made a similar approach much sooner.
    3. The Claimant reacted relatively speedily after receiving Father Pelucchi’s reply by approaching solicitors in December 2011. The different impression which he gave in his book and in his evidence prior to the production of the correspondence with AO Advocates in December 2011 was simply untrue.
    4. Even if I accepted the Claimant’s explanation for doing nothing until after his mother’s death, I agree with Mr Norris that this does not weigh heavily in his favour in the overall balance. Even if this was a good reason for delay from his own point of view, that is not the end of the inquiry. In Carroll v Chief Constable of Manchester Police [2017] EWCA Civ 1992 Sir Terence Etherton M.R. said at [42(9)],
‘The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain’s case, para 73. I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant’s ability to defend the claim.’
I take the Master of the Rolls to have been speaking of the two extremes between which there is a continuum and what is important is to consider whether the reasons for the delay are such as to qualify or temper the prejudicial effect of the delay. In my judgment, in this case they are not.
    1. Mr Norris is also entitled to comment on the absence of any explanation for the period between the Claimant’s first contact with solicitors in December 2011 and their letter of claim in March 2013. No doubt some time was needed for them to investigate the Claimant’s account, but it is striking that there is no statement from the solicitors or evidence from them (other than what can be inferred from their correspondence).
The Claimant’s destruction of documents
    1. I have already described how the Claimant’s solicitors provided the Defendant’s solicitors with copies of his diaries for 1969 and 1973-5; how the back cover of his book referred to him making use of his 45 diaries and thousands of letters and other documents; how the Defendant’s solicitors asked for the other diaries, but that a supplementary list of documents dated 30th October 2014 said that the Claimant did not know when the diaries for 1970-72 had gone missing, but he believed they were taken from his room at Mirfield and he had cleared out his other diaries and letters which he had used to write his book in 2014; how on 22nd July 2015 the Defendant applied to strike out the claim on the basis of the destruction of documents after the claim had commenced (an application supported by the statement of the Defendant’s solicitor, Mr Carroll); and how the Claimant made a witness statement in response on 27th July 2015.
    2. In the course of the trial, some correspondence was produced between the Claimant and AO Advocates, the Claimant’s original solicitors. I have already mentioned the exchange of emails in December 2011.
    3. There is a file note from AO Advocates dated 30th August 2012 which included the following:
‘Peter came in to the office in order to go through and photocopy letters and reports from his time at school. He brought with him two large bags of letters and all of his diaries from his time at Mirfield junior Seminary.
I left Peter to go through the materials, instructing him that we are hoping that he will pick out anything that relates to the following:
1. Anything to, or from or about Michael Riddle
2. Anything speaking to his aptitude as a pupil
3. Any letters he may have sent home speaking to his general state of being
4. Any letters he may have sent to Fathers Hicks or Clarke
5. Anything that speaks to [his close relative]’s time at school…’
    1. The last entry requires some explanation. As it happened, AO Advocates were also instructed in relation to a claim by the relative in connection with his time at Mirfield. The relative did make an allegation in relation to Riddle, but that was said to have occurred in 1971 which, on the Claimant’s account (supported by his contemporaneous diary) was before Riddle began teaching at the school. The relative did not give evidence at the present trial.
      1. In his evidence the Claimant said for the first time that he may not have had a diary for each of the 45 years between 1969 and the publication of the book in 2014. He said the reference to 45 diaries on the cover of the book was an example of ‘poetic licence’. There may have been about 10 years when he did not have a diary. All of the diaries had been in the two suitcases which he had taken to AO Advocates (and which are mentioned in their file note). They had kept the diaries which the Claimant still had and which covered his years at Mirfield. They gave the others back to him. He was asked whether he was told that he could destroy these returned diaries. He said that had not been the case, but AO Advocates had not advised him that he should not destroy them. The Claimant said he had done so because he was living in a small one bedroom flat and he was short of space. He said he could not have left these diaries with his solicitors: they were not a storage facility.
    2. In his witness statement opposing the strike out application, the Claimant had said this,
‘I attended my solicitors’ offices back on 30 August 2012 and 12 September 2012. On both occasions, I provided them with large quantities of documents (2 suitcases full) relating to my life over many years. I recall that my solicitors kept copies of any documents that they thought might have even marginal relevance to the case and returned the rest to me. Some of the documents that I subsequently destroyed were therefore documents expressly considered by my solicitors and returned to me…’
So far as this says or implies that the decisions as to relevance were made by the solicitors, the statement is inconsistent with the Claimant’s oral evidence and I reject it. In her skeleton argument opposing the strike out application and served before the trial commenced, Ms O’Rourke wrote, ‘Other documentation deemed not relevant was destroyed – after handing it over to solicitors expert in this type of claim he was told he could take it away’. While that comment was understandable in view of the Claimant’s witness statement and AO Advocates’ letter of 23rd July 2015, in the light of the Claimant’s oral evidence, it is unsustainable.
    1. While the topic of the Claimant’s destruction of documents was first raised in the context of the Defendant’s application to strike out the claim as an abuse, Mr Norris submitted that the matter was also relevant to the issue of limitation. Ms O’Rourke did not dissent and I agree.
    2. Ms O’Rourke was entitled to submit that the destroyed documents are only relevant for these purposes to the extent that they would have assisted the Defendant’s case or undermined the Claimant’s case (see the definition of standard disclosure in CPR r.31.6). If and so far as the destroyed documents would have helped his own case, that is his loss and of no relevance to the limitation issues. I agree with this. However, the Defendant does not have to go so far as to prove that any of the destroyed documents would have assisted him. That would be unrealistic. In my judgment it is sufficient if the Defendant can show that there is a realistic prospect that he would have been helped by the destroyed documents.
    3. Ms O’Rourke submitted that none of the diaries which have survived refer to the abuse itself. In his evidence, the Claimant said that he had not mentioned the abuse elsewhere in his diaries and had not at any stage referred to disclosing it to anyone.
    4. That is as may be, but in my judgment the Defendant can satisfy the appropriate test. I have in mind, in particular, the issues of damage and causation and, in that context, particularly the claim that the Claimant suffered PTSD as a result of Riddle’s abuse and that the abuse was a reason, or a significantly contributory cause to the Claimant being unable to join the priesthood or become a missionary (and to which I return in the following section of this judgment).
    5. The documentation which has survived has assisted Dr Kennedy and Professor Maden in preparing their reports and in giving their evidence. I consider that if the large volume of other material subsequent to the Claimant’s time at Mirfield had also survived there is a realistic prospect that it would have contributed to that picture. Of course, it may have assisted the Claimant’s case, but it may well also have shown other reasons for such symptoms of PTSD as Dr Kennedy was able to detect or indicated other reasons (independent of any abuse) why the Claimant was thought to be unsuitable for ordination or work as a missionary.
    6. I appreciate that when the Claimant destroyed the documents in the autumn of 2014, the Particulars of Claim did not plead that the abuse had caused him to suffer PTSD. Neither Dr Shapero nor Dr Hellin had suggested that was the case. The Particulars of Claim did, though, claim that the abuse had caused the Claimant to suffer the loss of congenial employment as a priest or missionary (see paragraph 19(f)).
    7. The destruction of documents was deliberate, but I do not find that the Claimant deliberately chose documents which would harm his case or assist the Defendant. There would be no basis for any such finding. I have no reason to doubt the Claimant’s evidence that his motive in acting as he did was to make room and, so far as the documents had been with his mother when she died, to prepare her property for disposal. Nonetheless, this deliberate destruction of potentially relevant documents is a factor to be taken into account in making the limitation judgment.
The claims for PTSD and loss of congenial employment and their relevance to the limitation issue
The Defendant’s conduct after the Claimant first raised his complaints
    1. Ms O’Rourke submitted that the investigation conducted by Father Pelucchi following the Claimant’s visit to Rome in 2011 was perfunctory, was not in accordance with the Order’s own Code of Conduct and took too long.
    2. Whatever force these criticisms have in relation to the investigation of the allegations then being made in relation to Father Hicks and Father Clarke is beside the point. Those allegations have been abandoned as far as the present claim is concerned.
    3. Father Pelucchi had no means of contacting Riddle. Father Devenish (whom Father Pelucchi saw on his visit to the UK) assumed that Riddle was dead. If he had been still alive in 2011, Riddle would then have been 105. Even if Father Pelucchi and Father Devenish did not know Riddle’s exact age when he taught at Mirfield, their assumption that Riddle was no longer alive was a reasonable one. As it later transpired, the assumption was also correct. Riddle had died 12 years earlier in 1999.
    4. Nor do I consider that Father Pelucchi took an unreasonably long time before responding to the Claimant’s allegations. The Claimant went to Rome and saw Father Pelucchi on 5th June 2011. Father Pelucchi wrote his letter of reply on 29th November 2011. This was somewhat longer than the 2-3 months that Father Pelucchi had originally estimated and the Claimant had written a chasing letter on 10th October 2011. However, in my view, it was reasonable for Father Pelucchi to consider that, in order to conduct even a preliminary investigation, he had to visit the UK and see Father Clark in Glasgow and Father Hicks in London. Father Pelucchi had other obligations and calls on his time (Father Pelucchi’s parents were then ill). He did visit the UK in mid-November 2011. He said that the Claimant’s allegations were important and required prompt investigation but they related to events many years previously. There was no immediate danger or fear of recurrence. The Claimant had said that he was prepared to wait up to 6 months for a reply (which was reasonable in the circumstances).
    5. Father Pelucchi said that he allowed the Claimant to talk as much (or as little) as he wished about the nature of his allegations. It was a painful matter and Father Pelucchi had not thought it right to press him for information further than the Claimant wished to volunteer. In short, I do not consider that there is anything in the Order’s conduct in response to the Claimant’s first complaints that should count against it in my decision on limitation.
    6. In his amended witness statement, the Claimant said that Father Pelucchi had lied when he said that the Order had not received ‘any other complaint about Mirfield’. That was a mischaracterisation of Father Pelucchi’s letter which had said ‘to the best of our knowledge and belief no similar allegation, suspicion or concern has ever previously been raised with regard to Michael Riddle‘ [my emphasis]. Mr Carroll (the Defendant’s solicitor) gave unchallenged evidence that this statement was accurate: in November 2011 there had been no similar allegation, suspicion or concern with regard to Riddle. As previously noted, a close relative of the Claimant did subsequently make an allegation of abuse by Riddle at Mirfield, but that was in 2012. It also concerned a time (1971) before Riddle actually began teaching at Mirfield.
    7. The Claimant did not reply to Father Pelucchi’s letter until AO Advocates wrote their letter before claim on 22nd March 2013 when, as one would expect, the matter was placed in the hands of solicitors. There is nothing in the conduct of Father Devenish or the Order thereafter which should count against them in my decision on the limitation issue.
The Claimant’s conduct since the commencement of the action
    1. I have dealt separately with the Claimant’s destruction of documents. Here I address Mr Norris’s other criticisms of the Claimant’s conduct since the action was commenced.
    2. There were first the changes in the experts on whom the Claimant relied. As described above, the Claimant’s solicitors first instructed Dr Shapero. As William Davis J. recorded in his judgment, Dr Shapero interviewed the Claimant twice: in October 2012 and then on 1st May 2013. His draft report was dated June 2013. In June 2014 the Claimant obtained permission from Master Yoxall to rely on the report of Dr Hellin. No mention of Dr Shapero had been made at the Case Management Conference conducted by Master Yoxall. At the hearing before William Davis J. on 29th July 2015, he was concerned about the trial that was then listed to take place in November 2015. He refused the Claimant permission to substitute Dr Kennedy for Dr Hellin. Again as I have recounted above, the Claimant’s appeal against this decision of William Davis J. was dismissed in May 2017. However, since the trial date had by then been lost in any event, the Court of Appeal itself granted permission to the Claimant to rely on Dr Kennedy in place of Dr Hellin. In my judgment, Mr Norris is entitled to say that this switching between experts on the Claimant’s behalf has led to the trial of this matter being delayed and where there has, in any case, been very great delay, its further exacerbation is a matter which can be taken into account against the Claimant. The orders that the Claimant should bear 80% of the costs before William Davis J. and all of the costs of the appeal to the Court of Appeal do not dissuade me from taking that view. Those orders were a result of his applications or appeals being unsuccessful, or largely unsuccessful. I am concerned with the delay which has resulted from those stages of the litigation and the impact of that delay on the Claimant’s application for the primary limitation period to be disapplied.
    3. There were other matters on which Mr Norris was entitled to rely. Thus:
i) It was only during the course of the trial, that documents from AO Advocates were disclosed which showed that the Claimant had first consulted them in December 2011, not February 2012 as he had given the impression in his book.
ii) It was only when the Claimant gave evidence that he said the reference on the cover of his book to him having ’45 diaries’ was ‘poetic licence’. His witness statement of 27th July 2015 which responded to the Defendant’s strike out application had made no reference to this.
iii) The Claimant’s statement made in opposition to the strike out application gave the impression that his solicitors had reviewed all the documents which he took to their offices in August and September 2012, they had retained anything which they considered might be of even marginal relevance and returned the remainder. He said ‘Some of the documents that I subsequently destroyed were therefore documents expressly considered by my solicitors and returned to me.’ However, the solicitors’ file note showed that the selection of documents to be retained by them had been made by the Claimant, as he confirmed in his evidence.
iv) Professor Maden described his interview with the Claimant as:

‘probably the most confrontational interview I have ever had except when dealing with patients who were intoxicated or psychotic.’

It is apparent that the Claimant approached the interview with suspicion about the appropriateness of Professor Maden’s expertise and scepticism as to the relevance of some of the questions that he was being asked. Having heard the evidence of Professor Maden and the Claimant, I reject the Claimant’s allegation that Professor Maden behaved in anything other than an entirely professional manner during the course of the interview. As to his suitability as an expert, he had been approved by Master Yoxall as an appropriate expert for the Defendant to use. As it happens, Professor Maden’s name had previously been included in a list provided by AO Advocates with their letter of claim of 22nd March 2013 and ‘from whom we [i.e. the Claimant’s solicitors] expect to choose an appropriate expert’. The Claimant was anyway obliged to do his best to respond to Professor Maden’s questions. Instead there were occasions when he gave answers that were demonstrably untrue. Thus, for instance, I accept Professor Maden’s evidence that the Claimant told him that he did not know the cause of his father’s death or his age at the time. By contrast in his book, published the previous year, he gave the precise time and cause of his father’s death. The Claimant also agreed that he told Professor Maden that he did not know his siblings’ occupations. He said that he had given Professor Maden an untrue answer to encourage him to move on from a topic which he (the Claimant) thought unimportant.
Absence of Insurance
    1. In Sayers v Hunters [2013] 1 WLR 1695 CA Jackson LJ said at [67] ‘the insurance position of the parties is a relevant factor and must be taken into account’. He cited Lord Bingham in Horton v Sadler [2007] 1 AC 307 at [32]. In that case Lord Bingham had said,
‘But there is, it seems to me, a problem underlying the whole of s.33: that it appears to treat the plaintiff and the defendant as individuals liable to suffer prejudice, and with no recognition that it is frequently the competing interests of insurers which will be liable to suffer prejudice. I cannot accept the suggestion by the MIB that the references to “or any person whom he represents” in subsections (1)(a) and (1)(b) are capable of referring to insurers, since a plaintiff and a defendant do not in any legal sense “represent” their insurers. Faced by this problem, but rightly recognising the reality of insurance, the courts have routinely and rightly taken account of the parties’ insurance rights. Thus a plaintiff’s rights against his insured solicitor are very relevant (Thompson p.752) but this does not mean that refusal of an order under section 33 will not prejudice him to some degree (see Thompson pp.750-751).’
    1. At one stage in her submissions, Ms O’Rourke argued that insurance was irrelevant in the present case because what Riddle had done was a series of criminal acts and insurance was not available to cover such matters. She would have been right if Riddle himself had been the defendant and relied on his absence of insurance cover. That, though, is not the case. Father Devenish is the representative defendant for the Order as Riddle’s employer. There is no rule of law which precludes an employer from taking out insurance to cover its vicarious liability for the crimes of its employees.
    2. Although the Order did not have insurance, it does have considerable assets. Father Devenish is the chair of the charitable trust which holds the Order’s property. In his evidence, he confirmed that the trust had assets of some £3.4 million and longer term investments of about £5 million. He accepted that it was fairly wealthy. The world wide assets of the Combonis were about £200- £250 million and it was a fairly wealthy institution.
    3. In those circumstances, it seems to me that the absence of insurance counts for very little in the balance which I must strike. Mr Norris urged me to take account also of the costs of the litigation – both the Defendant’s own costs and its liability to pay the Claimant’s costs if it is unsuccessful. Conversely, Ms O’Rourke told me that the Claimant did not have insurance to cover all his potential liability for the Defendant’s costs if he was unsuccessful, though there was no evidence for this assertion. In any case, I have already given my reasons as to why I do not regard the potential impact of costs as relevant to my decision as to whether to disapply the primary limitation period.
    4. Mr Norris also submitted that the Order was a charitable institution and any damages paid to the Claimant would be a diversion from its charitable purposes. However, I did not find this a persuasive argument. At the time that the Claimant attended Mirfield the Order ran and operated the school. That activity carried with it various obligations. While, as a charity, the Order would have been relieved of some (such as an obligation to pay rates on its property), others (such as the obligation to deduct and account for income tax and national insurance on staff salaries) would have remained despite its charitable status. Its vicarious liability to pay compensation for the torts of its employees come into this last category.
    5. For all of these reasons, I do not consider that the Order’s absence of insurance is a relevant factor for me to take into account in the balancing exercise.
The specific matters which must be considered by Limitation Act 1939 s.2D(3)
Paragraph (a) the length of, and the reasons for the delay on the part of the plaintiff
    1. The length of the delay after the primary limitation period expired was agreed to be 34 years. That very lengthy delay is itself a serious obstacle to the Claimant’s request that the primary limitation period should be disapplied.
    2. In principle the lapse of time before the primary limitation period expired can also be taken into account, if not under paragraph (a) then as another relevant circumstance – see Collins v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 717. In the circumstances of this case I do not do so. It is a relatively short period (5-6 years from 1973 or 1974 till 1979) which is greatly overshadowed by the very much longer period after the expiry. In addition, until 1976 the Claimant was a minor.
    3. I have examined above the reasons which the Claimant has given for the delay. His wish not to disturb his mother is to some extent belied by his approach to Father Sanchez in 2010 (the year before his mother died), although I recognise that the approach then was tentative and did not result in any public disclosure. But, even if this allowance is made in the Claimant’s favour, his wish to spare his mother’s feelings has to be weighed against what I find to be the very real prejudice to the Defendant in consequence of the delay. In the words of Sir Terence Etherton in Carroll such a reason (even if it were to be accepted) does little to temper the prejudice which the Defendant now faces.
Paragraph (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or defendant is likely to be less cogent than if the action had been brought [within the primary limitation period]
    1. For all the reasons which I have given above, I do consider that the evidence which has been adduced is likely to be substantially less cogent than if the claim had been brought before May 1979. The death of Riddle in 1999 is of particular importance, as I have explained, and that remains so notwithstanding the corroborative evidence which the Claimant has assembled. There are no ’employment’ records of Riddle held by the Order and so the difficulty of providing oral evidence on these matters unassisted by contemporary documents is acute.
    2. For the reasons which I have also explained, the evidence which the Defendant can give in response to the claim for PTSD is hampered by the absence of records of the therapy which the Claimant underwent in the Dympna Centre in about 1977 and, albeit to a lesser extent, the records of other therapy which he has undergone. The Claimant’s diaries which were destroyed may also have been illuminating as to his life events and potentially other causes for any mental ill health which he may have suffered.
Paragraph (c) the conduct of the defendant after the cause of action arose, including the extent if any to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant
    1. The causes of action arose in 1973 and 1974. There is nothing in the conduct of the Defendant since then which bears on the issue of whether the primary limitation period should be disapplied. The Claimant does not suggest that the delay was caused by the defendant failing to provide information or inspection.
Paragraph (d) the duration of any disability of the plaintiff arising after the accrual of the cause of action
    1. For litigation purposes the Claimant was ‘disabled’ while he was a minor. His disability accounted for a relatively small part of the period since the causes of action accrued. It is not material in the context of the facts of this case.
Paragraph (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages
    1. To some extent these matters overlap with those in paragraph (a) and I have discussed them already.
Paragraph (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received
    1. Apart from the reports of the doctors to which I have already referred, and the counselling which the Claimant has undertaken, I know of no other relevant medical advice which the Claimant has received. Apart from the recently disclosed material from AO Advocates, there is no evidence of any legal advice which the Claimant received.
    2. In 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 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 (see [80]). There is no such evidence here. Put another way, there is no evidence here 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.
The Balance of equity as to whether the primary limitation period should be disapplied
    1. The burden of showing that the primary limitation period should be disapplied is on the Claimant – Carroll [42(3)]. The burden is not necessarily a heavy one ibid [42(4)]. The Defendant has an evidential burden ibid [42(5)], but in the circumstances of the present case I find that the Defendant has readily discharged that evidential burden. Riddle’s death alone does that. For the reasons I have explained, despite the additional evidence which the Claimant has presented, the very lengthy delay in this case has seriously prejudiced the prospects of a fair trial. Although there are some contemporary documents, there are others missing which there are reasonable grounds to believe would have assisted the Defendant in defending issues of liability, damages and/or causation. The absence of contemporary documents (such as personnel records for Riddle) puts even greater emphasis on what witnesses can recall and the very lengthy delay in this case inevitably makes recall problematic. Even the Claimant, whose book cover boasts of his ‘remarkable memory’ and who said in his evidence that his memory was ‘very, very good’, has proved fallible.
    2. I have also explained my views about the Claimant’s reasons for delaying proceedings. In summary, they do not significantly qualify or temper (to use Sir Terence Etherton’s words in Carroll at [42(9)] the prejudice which has been caused to the Defendant by the delay.
    3. As will be apparent, I have specifically considered the matters listed in s.2D(3), but I have not limited myself to those matters. I have, as s.2D(3) requires, taken into account all the circumstances of the case. I have explained in the course of this judgment those which I do consider relevant (e.g. the Claimant’s destruction of documents and certain other aspects of his conduct since the proceedings began) and those which I do not consider relevant (such as the absence of insurance covering the Defendant’s liability). Numerous other issues were raised in the course of this trial. I have not thought it necessary or proportionate to rule on all of them. Had I done so, this already lengthy judgment would have been longer still.
    4. I have also taken into account proportionality (although it is fair to say that this is of more obvious significance where limitation is taken as a preliminary issue and an investigation into proportionality is important to decide if ‘the game is worth the candle’). I accept that, on the evidence which I have received this is not a case where the Claimant’s prospects of establishing that the abuse took place are thin. However, if the claim is confined to general damages for the assaults themselves, the damages would not be very large. Ms O’Rourke urged me to have regard to the importance of an alleged victim of sexual abuse being vindicated by a court judgment in their favour. That may be, though as the passage from Lord Brown’s speech in A v Hoare showed, he envisaged that there would be some such victims who would not succeed in having the primary limitation period disapplied. Furthermore, when the alleged perpetrator is dead, vindication in this sense is rather more attenuated.
    5. As I have made clear, the claim for damages is not confined to general damages for the pain and suffering and damage to feelings as a result of the abuse itself. However, while the claim for consequential losses increases the size of damages at stake in the action, it also entails further prejudice for the Defendant in terms of missing, potentially useful documents.
    6. Taking everything into account I do not consider that it would be equitable to allow this action (or any cause of action by the Claimant) to proceed having regard to the degree to which the provisions of s.2A (the primary limitation period) prejudices the Claimant, and to the degree to which any decision of the Court under s.2D would prejudice the defendant or the Order which he represents.
    7. It follows that I will not exercise the discretion in Limitation Act 1939 s.2D to disapply that primary limitation period.
Conclusion as regards the claim
  1. I received helpful submissions on the other issues in the case, including, from Ms Webb, on behalf of the Claimant, succinct but well-formulated oral arguments as to the quantum which each head of loss should attract. However, since the parties were agreed that the primary limitation period had expired before the Claim Form was issued, if that is not to be disapplied, the other issues canvassed by the parties fall away.
  2. The claim is dismissed.
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