THE JUDGE’S ROLE WHEN A PARTY DOES NOT ATTEND TRIAL: SECTION 33 APPLICATION ALLOWED WHEN PROCEEDINGS ISSUED 22 YEARS AFTER ASSAULTS

In the judgment today in LXA & Anor v Willcox [2018] EWHC 2256 (QB) His Honour Judge Robinson (sitting as a Judge of the High Court) had to consider two issues: (i) the appropriate role of the judge when a party fails to attend trial, but evidence still needs to be adduced and considered by the trial judge; (ii) a Section 33 application in relation to allegations of abuse that had taken place previously.

“Whilst it is for the Claimant to persuade the court to exercise in the Claimant’s favour the discretion to disapply the relevant time limit, there is nevertheless an evidential burden, which rests with a Defendant, of showing that the evidence adduced or likely to be adduced by the Defendant is or is likely to be less cogent because of the delay”

THE CASE

The claimants brought actions for damages for sexual abuse and cruelty that had taken place in the 1970s.  In 2015 a jury found the first defendant guilty of acts of indecent assault, indecency and child cruelty. The second defendant was found guilty of charges of cruelty.

The first defendant died in 2017. His estate was substituted but did not attend trial. The Second Defendant did not attend trial but wrote asking that her witness statements and matters set out in the counter-schedule be taken into account.

THE JUDGE’S ROLE

The first matter the judge had to consider was the role the trial judge played in these circumstances.  There still had to be a hearing and the claimants give evidence. However that evidence would not be challenged by the defendant.

THE JUDGMENT ON THIS POINT

    1. In the absence of CW, an interesting and important issue arises concerning the applicability of CPR 3.1A, which deals with the manner in which Judges accommodate the special needs of unrepresented litigants. It is necessary to start with CPR 39.3:
Failure to attend the trial
39.3 – (1) The court may proceed with a trial in the absence of a party but-

(a) if no party attends the trial, it may strike out the whole of the proceedings;

(b) if the claimant does not attend. It may strike out his claim and any defence to counterclaim; and

(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) …
(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.
(4) …
(5) …”
    1. In this case there was no question of striking out the Defence since this would have taken matters no further. The Claimants’ cases on liability are overwhelming on account of the convictions mentioned above, and the claims for damages must still be proved. Thus, there must still be a hearing, albeit in the absence of CW. What, then of CPR 3.1A? So far as is relevant to the present circumstances, CPR 3.1A reads:
Case management – unrepresented parties
3.1A – (1) This rule applies in any proceedings where at least one party is unrepresented.
(2) [Case management]
(3) [Case management]
(4) The court must adopt such procedure at any hearing as it considers appropriate to the overriding objective.
(5) At any hearing where the court is taking evidence this may include –

(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and

(b) putting or causing to be put, to the witness such questions as appear to the court to be proper.”

  1. Whilst it seems to me likely that it was envisaged that the unrepresented party would be present for the purpose of paragraph (5), it does not seem to me that the rule is so limited. The obligation of a Judge is to further the overriding objective, which is to deal with cases “justly and at proportionate cost” – see CPR 1.1(1). This includes “so far as practicable – (a) ensuring that the parties are on an equal footing” – see CPR 1.1(2)(a). In my judgment, these provisions taken together result in CPR 3.1A (5) being engaged even when the unrepresented party is not present.
  2. Of course, there must be sensible limits to what a Judge can or should do. The Judge must be astute to avoid descending into the forensic arena in such a manner or to such an extent that it might appear that he has abandoned his role as an impartial arbiter. On the other hand, in seeking to put to the Claimants and their witnesses the matters properly raised by the unrepresented absent Defendants, there is little point in doing so in such a manner that the exercise is of little or no forensic value.
  3. For an excellent analysis of the difficulties which arise in seeking to achieve and maintain this delicate balance see the appeal judgment of Hayden J in the family case of PS v BP [2018] EWHC 1987 (Fam). The facts of that case are very different to those in the case before me, and the unrepresented party was in fact present. However, the trial Judge undertook the task of putting questions on behalf of the unrepresented party. The manner in which he did so gave rise to the appeal. It is of relevance that Section 31G(6) of the Matrimonial and Family Proceedings Act 1984 is drawn in materially identical terms to CPR 3.1A(5), and regardless of the nature of the case, there ought to be no difference in the manner in which a Judge discharges his obligation to unrepresented parties. Hayden J also made valuable observations intended to assist Judges and legal professionals. Whilst they are expressly directed to issues likely to arise in certain family cases, it seems to me that they are likely to be of real value in civil cases where sexual abuse is alleged.
  4. In my judgment, even where the unrepresented party is not present, but where it is clear the unrepresented party has indicated matters which are of concern to that party, it is proper for a Judge to explore those matters with relevant witnesses for the represented party. In this case there are relevant matters which have been raised in the Counter-Schedules of loss, the witness statement of CW and also in the letter written by her to the Court.
  5. In one sense, it may be thought that these observations do not go any further than the right of a Judge to seek clarification of matters adduced in evidence by a Claimant in a case where the Defendant has not attended, whether represented or not. The Claimant still has to prove his case to the satisfaction of the Judge. However, there will be cases, of which this is one, where there are matters raised by the unrepresented party which go beyond matters of clarification which it would be proper for the Judge to explore on behalf of the absent unrepresented party. This is what I have attempted to do in this case, in a manner intended to achieve and maintain the delicate balance to which I have already referred.

LIMITATION AND SECTION 33

    1. The causes of action in respect of both Claimants were complete by 21 August 1978 in the case of XLA and by 22 July 1981 in the case of BXL. The limitation period expired on the 21st birthday of each Claimant; 22 February 1985 for LXA and 22 July 1986 for BXL. No question of a later date of knowledge arises in these cases. Proceedings were commenced on 22 December 2016, over 21 and 22 years respectively after the expiry of the primary limitation periods, but after guilty verdicts had been returned on 28 May 2015 in the criminal proceedings. The defence of limitation was pleaded in the defence. Thus, I must first determine whether to disapply section 11 of the Limitation Act 1980 pursuant to section 33 of that Act.
    2. I remind myself of what Auld J said in KR v Bryn Alyn Community Holdings Ltd [2003] EWCA Civ 85 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”.
    1. It is an indisputable feature of this case that, from the moment that proceedings were commenced, it was known that the Defendants had been convicted of offences forming the subject matter of the majority of the tortious allegations made by the Claimants against the Defendants.
    2. Section 33(1) of the Limitation Act 1980 provides:
“(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 11 … of this Act 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 … .”

    1. The discretion afforded by Section 33(1) is unfettered save that Section 33(3) provides that the court “shall have regard” to all the circumstances of the case and “in particular” to the six specific issues particularised under Section 33(3) which represent a non-exhaustive checklist of some of the prominent relevant circumstances. In addition, useful guidance has been given by the House of Lords in A v Hoare [2008] UKHL 6[2008] AC 844 and by the Court of Appeal in the conjoined appeals of Cain v FrancisMcKay v Hamlani [2008] EWCA Civ 1451.
    2. In A v Hoare Lord Hoffman, at para 49, confirmed that the discretion of the court is unfettered subject to the matters set forth in subsection (3). Lord Brown at paras 84 to 86 of his opinion gave some guidance about the considerations relevant to the sexual abuse cases that the House of Lords was considering. Paramount was the concept of a fair trial which, as Lord Brown observed in para 86 “must surely include a fair opportunity for the defendant to investigate the allegations”. He went on to observe, in the same paragraph, that in many cases that would be likely to be found “quite simply impossible after a long delay”.
    3. In Cain the Court of Appeal dealt with appeals in two cases whose facts were similar in important respects. Both cases involved a claim for damages for personal injuries sustained in road traffic accidents where in each case the Claimant had intimated a claim to the Defendants’ insurers very promptly and in each case liability had been admitted. In both cases, proceedings were issued after the expiration of the primary limitation period. In the case of Cain the delay was one day and in McKay the delay was just under a year. The Judge in Cain refused to exercise Section 33 discretion in favour of the claimant whilst the Judge in McKay did exercise discretion in favour of the Claimant.
    4. It is clear that the facts of those cases are very different from the facts of the case before me. Although, in the light of the convictions, liability may appear to be straightforward, there are real issues concerning damage and causation. And, of course, the delay is very much greater than one year. Finally, the factual circumstances are far more complex than a straightforward road traffic accident.
    5. Nevertheless, the review of the relevant authorities conducted by Smith LJ is extremely useful as are the conclusions drawn from paragraph 57 onwards. Like Smith LJ, I also find the observations of the Chancellor extremely helpful and I begin with his analysis which is in these terms:
“[78] In cases to which Section 11 Limitation Act 1980 applies any action may not be brought after the expiration of the periods prescribed by subsections (3) and (4). In any such case there will be no trial on the merits. The purpose of Section 33 is to enable the court to review the position in the light of the facts of individual cases. The object of the exercise is to consider the circumstances of individual cases in order to determine whether the action should proceed to trial. That this is the purpose is confirmed by the material words in subsection (1) which pose the indirect question whether “… it would be equitable to allow the action to proceed…”.
“[79] The action can only proceed in cases to which Section 11 applies if the provisions of that Section are disapplied by a direction to that effect made by the court under Section 33. By subsection (1)(b) the court is required to have “regard to the degree to which – [such a decision] … would prejudice the defendant …”. Thus the prejudice is to be ascertained on the assumption that the provisions of Section 11 have been disapplied by an order made under Section 33. The subsection does not direct the court to have regard to the prejudice the defendant would suffer from the very act of this application.
“[80] The consequence of the disapplication of Section 11 will be that there may be a trial of the claimant’s claim on its merits notwithstanding the delay in commencing the proceedings. Has that delay caused prejudice to the defendant in its defence? If so, does it outweigh the prejudice to the claimant of being denied a trial at all? In addition the court will need to consider all the circumstances of the case and in particular to the other aspects of the case enumerated in subsection (3)” [emphasis added].
“[81] In that context it does not appear to me that the loss of a limitation defence is regarded as a head of prejudice to the defendant at all; it is merely the obverse of the disapplication of Section 11 which is assumed. It is this consideration which, in my view, accounts for and justifies the marked reluctance of the courts, as demonstrated by the judgments to which Smith LJ as referred in detail, to have regard to the loss of a limitation defence.”
    1. Throughout the judgment of Smith LJ, the consistent theme appears to me to be consideration of the effect of any delay rather than the length of the delay itself and in particular whether the effect is such that “the defendant has suffered any evidential or other forensic prejudice which should make the difference” – see para 57. Whilst length of delay is, of course, relevant it is not, of itself, a deciding factor.
    2. Turning to the checklist contained within Section 33(3) it does not seem to me that paragraph (c) [the conduct of the Defendant] or (d) [disability on the part of the Claimant] applies in this case
    3. I deal first with the factors mentioned in paragraphs (e) and (f) in Section 33(3).
    4. Paragraph (e) is concerned with:
“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”.
In this respect, I am concerned with actual knowledge. I am satisfied that the Claimants were aware from the outset that wrongs had been committed against them. However, I can understand the marked reluctance of victims of sexual abuse to disclose such abuse. This is dealt with in part by Dr Rozewicz and is also relevant when considering paragraph (a) of Section 33(3) namely:
“the length of, and the reasons for, the delay on the part of the plaintiff”.
    1. The length of the delays is 21 and 22 years respectively. The reason, it seems to me, arises from an understandable reluctance to disclose matters of an intensely personal and intimate nature.
    2. Dr Rozewicz deals with this issue in his reports. It should be noted that Dr Rozewicz spells the surnames of EW and CW as “Wilcox” and not “Willcox”. I have left his spelling uncorrected. In respect of LXA he says this at page 376:
“LXA saw the Wilcoxes as his parents. He was placed with them when he was six years old. He was told by Mr Wilcox not to tell anyone that he would be abused and he was worried that Mr Wilcox could kill him. The delay in making the complaint is therefore completely reasonable in the circumstances. Very few victims of sexual abuse have the confidence to complain about the abusers in particular when they are their parents. LXA saw the Wilcoxes as his parents over eight years. It is quite understandable that he did not complain about them. This is fully consistent with the behaviour of other victims of sexually sexual abuse. I therefore do not find this delay surprising.”
    1. In respect of BXL he says this at page 395:
“The delay in bringing the case is reasonable and completely understandable. BXL was abused by adoptive parents and understandably she was very afraid that if she disclosed the abuse they would harm her in some way. She told me that she was worried that they would actually kill her. It is quite common for victims of abuse not to complain to the police and particularly if the abuse was caused by their parents. The Wilcoxes were effectively BXL’s parents.”
    1. These seem to me to be good reasons to which I should give considerable weight.
    2. I next turn to Section 33(3)(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 loss cogent than if the action had been brought within the time allowed by Section 11…’.
  1. This is the issue at the heart of the balancing process. There are some general observations concerning claims such as these which are of general application.
  2. Whilst it is for the Claimant to persuade the court to exercise in the Claimant’s favour the discretion to disapply the relevant time limit, there is nevertheless an evidential burden, which rests with a Defendant, of showing that the evidence adduced or likely to be adduced by the Defendant is or is likely to be less cogent because of the delay – see Burgin v Sheffield City Council [2005] EWCA Civ 482 at paragraph 23 per Clarke LJ.
  3. On the issue of liability, the evidence is perfectly cogent, and was found to be so by a jury in the course of the criminal trial. CW has filed a detailed witness statement, which it seems to me I am entitled to take into account without falling into the trap identified by Auld J in KR v Bryn Alyn Community Holdings Ltd. Section 11 of the Civil Evidence Act 1968 provides that in relation to a proven conviction of a person “he shall be taken to have committed that offence unless the contrary is proved”. Short of bare denials there is no indication that EW or CW was in a position to advance any positive case beyond anything that was advanced at the criminal trial.
  4. It is also relevant, in my judgment, to note that it would be somewhat surprising if a trial in the Crown Court before a Jury can be considered fair but the opposite conclusion is reached in the Civil Court.
  5. I acknowledge that there are potential difficulties with assessing loss in relation to both Claimants.
  6. Assessment of injury potentially dating back to the late 1970s is also not necessarily easy. But assessment of psychiatric injury often involves considering a long history. Psychiatrists are well used to this process. The relevant medical records are available. Financial loss is often more difficult to assess after the passage of a long period of time, but Judges are used to the concept of doing the best they can with the material available.
  7. In all the circumstances I am satisfied that there are good reasons for the delays in these cases. I am satisfied that a fair trial of all the issues is possible. In relation to each of the Claimants I exercise my discretion to disapply the provisions of Section 11 of the Limitation Act 1980.”

The judge went on to find liability established and to award damages to the claimants.