DATE OF KNOWLEDGE AND SECTION 33 IN SEXUAL ABUSE CASES: A HIGH COURT DECISION

June 19, 2015 · by · in Limitation

In A -v- The Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB) Mr Justice Globe considered the issue of the date of knowledge under s.14 of the Limitation Act 1980 and also stated that, had it been necessary, he would have exercised his discretion under Section 33 of the Limitation Act 1980.

THE CASE

The claimant was aged 29. She had been sexualy assaulted by a ministerial servant of the Jehovah’s Witness when she was aged 4 – 9. The abuse stopped in in 1994

  • The person who assaulted the claimant had died in 2001.
  • The facts of the sexual abuse were admitted by the defendan

The case was put in two ways:

(1) Vicarious responsibility for the act of the perpetrator.

(2) A failure by the Elders of the church to safeguard the claimant.

KEY POINTS

  • The claimant’s date of knowledge in relation to a failure to safeguard claim did not start to run until the defendant served its evidence.
  • In any event, if the limitation period had expired, it would be an appropriate case for the court to exercise its discretion under s.33 of the Limitation 1980.

DATE OF KNOWLEDGE IN RELATION TO THE FAILURE TO SAFEGUARD CLAIM

Allegations had been made against the perpetrator in 1990. The claimant knew,  from overhearing her parents talking between 2002 and 2005 that earlier allegations had been made. She had asked for more information but this had not been forthcoming.

THE JUDGMENT ON THE DATE OF KNOWLEDGE ON THE FAILURE TO SAFEGUARD CLAIM

  1. Mr Weitzman, for the defendants, submits that, for the purposes of s.14 of the Act, what a claimant must know is that an injury is attributable in whole or part to a defendant’s act or omission and that attributable means that the injury is capable of being attributed to the act or omission, not that causation, a cause of action or all allegations that might be pleaded are available. He submits that the evidence of Alan Orton can be accepted and, from the rest of the claimant’s evidence, she had sufficient knowledge for the purposes of s.14.

  2. Mr Counsell, for the claimant, submits that the evidence of the claimant is to be preferred to that of Alan Orton. She had nothing to go on except for what she describes as her “belief”, which in reality was unsubstantiated and amounted to no more than suspicion. Even then, such “belief” amounted to no more than that the elders had known of an allegation of sexual abuse, not that Peter Stewart had committed any sexual offence. Therefore, prior to the service of the witness statements, she lacked sufficient information to investigate a claim, let alone bring proceedings.

  3. S.14(1) of the Limitation Act 1980 provides:

“…..in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts-

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) ……

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”

The claimant knew that she had been sexually abused and knew that she had suffered significant injury arising from the abuse. The issue is whether, in accordance with s.14(1)(b), she had knowledge that the injury was attributable in whole or part to the act or omissions, which are alleged to constitute the negligence of the defendants.

  1. In AB and others v Ministry of Defence [2013] 1 AC 78, Lord Mance referred at paragraph 80 to the much-quoted sentence of Hoffman LJ inBroadley v Guy Clapham & Co [1994] 4 All ER 439, 448H-J

“S.14(1) requires that one should look at the way in which the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based.”

  1. Lord Mance continued at paragraph 81 by referring to the approval of the House of Lords of the above passage in Haward v Fawcetts [2006] 1 WLR 682 citing extracts from the judgments of Lord Walker, Lord Scott and Lord Brown. Lord Walker referred to the court being concerned with the identification of the facts that are the “essence” or “essential thrust” of the case. Lord Scott referred the requisite knowledge being “knowledge of the facts constituting the essence of the complaint of negligence”. Lord Brown referred to the claimant needing to know “the essence of the act or omission to which his damage is attributable”.

  2. The essence or essential thrust of the claimant’s pleaded case in relation to the “safeguarding claim” is that defendants failed to protect children of members of the congregation from sexual assault by Peter Stewart after they became aware of his sexual offending in 1990. The crucial issue therefore is whether the claimant had sufficient knowledge of the fact that the defendants had become aware of Peter Stewart’s sexual offending in 1990.

  3. In the leading judgment in AB and others, Lord Wilson stated the test was as follows:

“11. ………Had I been offering a view of the meaning of knowledge in s.14(1) in circumstances in which I had been unassisted by authority, I think I might have ventured the phrase “reasoned belief” rather than “reasonable belief”. The word “reasoned” might even better have conveyed the need for the belief not only to be held with a degree of confidence (rather than to be little more than a suspicion) but also to carry a degree of substance (rather than to be the product of caprice). But the distinction between the phrases is a matter of little more than nuance. In the resolution of marginal issues, and even at the level of this court, there is a lot to be said for maintaining consistency in the law. So I consider that this court should reiterate endorsement for Lord Donaldson MR’s proposition that a claimant is likely to have acquired knowledge of the facts specified in s.14 when he first came reasonably to believe them. I certainly accept that the basis of his belief plays a part in the enquiry; and so, to that limited extent, I respectfully agree with paragraph 170 of Baroness Hale JSC’s judgment. What I do not accept is that he lacks knowledge until he has the evidence with which to substantiate his belief in court. Indeed, we should not forget that, if the action is to continue, the court will not be directly interested in evidence about mere attributability; it will require proof of actual causation in the legally requisite case.

12. What then is the degree of confidence with which a belief should be so held, and of the substance of which it should carry, before it is to amount to knowledge for the purpose of the subsection? It was again Lord Donaldson MR in Halford v Brookes [1991] 1 WLR 428 who, in the passage quoted by Lord Phillips PSC in paragraph 115 below, offered guidance in this respect which Lord Nicholls inHaward v Fawcetts [2006] 1 WLR 682 was, at paragraph 9, to describe as valuable and upon which, at this level of generality, no judge has in my view yet managed to improve; it is that the belief must be held “with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.”

  1. For the reasons already stated in relation to the facts, the claimant had no information at all about what the elders might have known in 1990 until overhearing her parents speak about it some time between about 2002 and 2005. All that she then discovered was that there was an allegation that the elders had known about an allegation of Peter Stewart having sexually abused AM. Her efforts to discover what the elders actually knew were thwarted by what I am satisfied was the negative reaction of both Alan Orton and Paul Presland. Her anger and comments at the meeting on 21 November 2013 produced no confirmation upon which to act. In my judgment, her “belief” was not held with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence. The “belief” she had was in reality no more than mere suspicion. In such circumstances, she did not thereby have sufficient knowledge within the meaning of s.14(1) until the statements were served in March 2014.”

JUDGMENT ON THE SECTION 33 ISSUE

Limitation – s.33 “disapplication”

  1. S.33 of the Limitation At 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……..; and

(b) any decision of the court under this subsection would prejudice the defendant …..

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.

(2) ……

(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 to be 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 11…..

(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.”

(d) …….

(e) …….

(f) ……..

  1. S.33 (1) gives the court discretion to allow an action to proceed outside the limitation period and requires the court to balance the prejudice to the claimant arising from the limitation period against the prejudice to the defendant in permitting an action to proceed outside that period. That requires a balancing exercise to be performed taking all the circumstances into account. S.33(3) does not place a fetter on the discretion given by s.33(1). This much is made plain by the opening words “the court shall have regard to all the circumstances of the case”. S.33(3) focuses the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and which must be taken into consideration by the judge (Donovan v Gwentoys Ltd [1990]1 WLR 472 at 477H-478A).

  2. In considering the delay to which particular regard should be given under s.33(3)(a) and (b), I bear in mind that, pursuant to McDonnell v Walker[2009] EWCA Civ 1257, it is the delay since the expiry of the limitation period that is relevant, although the overall delay is relevant as part of all the circumstances of the case.

  3. Under s.33(3)(a), particular regard is to be had to “the length of, and reasons for, the delay”. The two matters appear in the same sub-paragraph. There is relevance to the conjunction of the two issues.

  4. The limitation period expired in September 2006, three years after the claimant’s 18th birthday. The proceedings were commenced in March 2013, 6½ years later. It is noteworthy, though, that the facts relevant to the action date back to the period between 1989 and 1994. Even if the proceedings had been legitimately commenced within the limitation period in 2006 and heard, say, in 2008, this would still have been a historic sex abuse case with all the issues associated with trials of that nature. That said, it is not a case where everything is in issue. By reason of the judicial committee proceedings in 1990 and Peter Stewart’s conviction in 1994, it is not disputed that the claimant was sexually abused by him and over a lengthy period. The issues in relation to the abuse are those identified above in paragraph 24.

  5. In relation to the reasons for the delay, the case of A v Hoare [2008] 1 AC 844 at 863C-D requires a judge to give due weight to evidence that the claimant might have been disabled from commencing proceedings by any psychiatric injury that might have been suffered. Mr Weitzman concedes that the expert report of Dr Roychowdhury establishes that the Post Traumatic Stress Disorder suffered by the claimant justifiably explains why she was unable to focus upon the prospect of commencing proceedings until 2013.

  6. Further, there is no issue as to s.33(3)(c). It is not suggested that the defendant’s conduct has affected the claimant’s ability to bring the action. S.33(3)(d)-(f) are also irrelevant in the context of the action.

  7. The narrow focus, therefore, pursuant to s.33(3)(b) is on the extent to which the delay has affected the cogency of the evidence under the wider umbrella of the surrounding circumstances of the case.

  8. Mr Weitzman refers to the death of witnesses and the difficulty about documentation and recollection so long after the events. He relies on the judgment in McDonnell, which contrasts the type of case where a defendant cannot show any forensic prejudice and for whom the limitation defence would be a complete windfall with one where prejudice is suffered because a defendant has not for many years been notified of a claim so as to enable investigation of it. He submits this is not a windfall case, but one where real prejudice has been suffered. He also refers to the observations of Lord Brown at paragraphs 85 and 86 of Hoare wherein he dealt with the real difficulties that could arise in having a fair trial in relation to historic sex abuse cases. In summary, he submits the defence evidence is substantially less cogent than it might have been and the prejudice is such that I should refuse to disallow the operation of s.11 of the Act.

  9. Mr Counsell submits the cogency of the evidence has not been significantly adversely affected. Memories may have faded over the short time frame of delay since the expiry of the limitation period, but not substantially. Indeed, the defence have been able to call all of the witnesses they would have called if the action had been brought in time. No key witnesses have died during the 6½ years period. The two elders referred to in evidence who have died, Mr Hunter and Mr Brown, respectively died in 1999 and 1992. The defence have not identified any documents that have not been recovered as a result of delay outside the limitation period. Many records have been recovered. Any documents that may have assisted were destroyed many years ago. They include the police interview, although there is a detailed summary of it, as well as the report from the judicial committee in 1990, which Paul Gillies said would have been destroyed almost immediately after the hearing. He submits this is an appropriate application to be granted.

  10. In relation to the circumstances of the case, I have regard to the balancing exercise I must perform between the prejudice on both sides. So far as the claimant is concerned, I take into account the fact that this is not a case where the claimant would have redress against any other prospective defendant. A refusal to disapply the limitation period will mean the end of the action for her. This is not a windfall case for the defendants. However, I do not regard any additional prejudice to the defendants arising either since the expiry of the limitation period or as a whole have so adversely prejudiced them that it should outweigh the prejudice to the claimant. In such circumstances, I am satisfied that a fair trial remains possible. At all times, I bear in mind the difficulties associated with the lack of evidence, particularly lack of documentation and witnesses, as well as poor recollection. In my judgment, the claimant has satisfied me that it is equitable to allow the action in relation to the “assault claim” to proceed and for me to direct that the provisions of s.11 should not apply to that part of the case. I am further satisfied that, even if (contrary to my earlier finding) the claimant were to be deemed to have had sufficient knowledge within the meaning of s.14 of the Act, it would be equitable to allow the action in relation to the “safeguarding claim” to proceed and for me to direct that the provisions of s.11 should also not apply to that part of the case.”

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