LIMITATION; SEXUAL ABUSE AND THE SECTION 33 DISCRETION: NO SPECIAL RULE JUST BECAUSE THE DEFENDANT WAS MORALLY CULPABLE

January 10, 2017 · by · in Limitation

In GH -v- The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 (QB) HH Judge Gosnell considered the exercise of the Section 33 discretion in a case where there was allegation of sexual abuse that took place in the 1980s.

“I will deal here briefly with the novel submission put forward by Leading Counsel for the Claimant that the high level of moral culpability on the part of the perpetrators and Defendants should inure for the benefit of the Claimant in the balancing exercise. Whilst there is no doubt that the perpetrators were morally culpable and that the Defendants could reasonably be criticised for the way they investigated the allegations of abuse which preceded the police prosecutions I am not convinced they should weigh significantly in the Claimant’s favour. If they did it would be difficult to see how a Defendant could ever succeed on the section 33 issue when attempting to defend an allegation of child sexual abuse. There would always be a high level of moral culpability attached to the allegations. The system of compensation for the commission of a tort in this country does not involve an assessment of moral culpability. The breach of duty may be accidental (in a strict liability case), negligent, reckless or intentional. The compensation is assessed on the same basis (other than in cases of aggravated or exemplary damages).”

KEY POINTS

  • It was for the claimant to persuade a court to exercise its discretion under Section 33 of the Limitation Act 1980.
  • In a case where there had been major delays & no documentation there was prejudice to the defendant.
  • The claimant had not provided convincing evidence to explain the delay.
  • The fact that the defendant’s (alleged) actions were morally culpable was not a factor to be taken into account in the Section 33 discretion.
  • On the facts of this case the court was not persuaded to exercise its discretion in favour of the claimant.

(Note that in one of the other test cases CD -v- The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3335 (QB) the delay was much shorter. The judge exercised his discretion in favour of the claimant and awarded damages on the basis of one incident being established).

THE CASE

The case was one of a number of test cases  related to allegations of physical and sexual abuse that took place in a school in the 1980s. It was common ground that the limitation period expired a considerable time before proceedings were issued.

THE JUDGMENT ON LIMITATION

The judge considered the law on limitation, in particular as it had been applied to cases relating to historical sexual abuse.

  1. The Law on Limitation
The Defendants in this action contend that the claim is barred due to the law on limitation of actions and the Claimant seeks the court’s discretion in allowing it to proceed. This is the first issue I must determine before dealing with any other issues in the case. I had considerable assistance from counsel in the case in identifying the relevant authorities and many were referred to during the trial. I do not intend to summarise every case I was referred to as this would make this judgment too lengthy but I have carefully considered all the authorities to which I was directed.
  1. The relevant provisions are contained in the Limitation Act 1980 and section 11 determines the length of the limitation period in personal injury claims:
Section 11
(1) This section applies to any action for damages for negligence, nuisance or breach of duty …. where 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.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) …. below
(4) …. the period applicable is three years from:-
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
  1. Section 14 of the Limitation Act defines when a Claimant’s date of knowledge is determined. In this case it is not necessary to consider those provisions as the Claimant accepts that his date of knowledge occurred when the assaults took place although the limitation period did not start to run until he had achieved his majority.
  2. In order to avoid the effects of the provisions on limitation the Claimant has to ask the court to exercise its discretion under s 33 of the Limitation Act 1980 to order that the time limit set by section 11 of the Act shall not apply. The section reads as follows:
33 (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 [or 11A] or 12 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, 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 11 [by section 11A] or (as the case may be) by section 12;
(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) 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. While these provisions in the Limitation Act are well known their application to cases of deliberate sexual abuse has been the subject of judicial interpretation over the years. In A v Hoare [2008] UKHL 6 the House of Lords provided much needed clarification of a number of issues which signalled a change in approach to the issue of limitation in cases such as the present one. Firstly, the Law Lords decided that its previous decision of Stubbings v Webb [1993] AC498 was wrongly decided. Stubbings v Webb had wrongly determined that the limitation for deliberate sexual abuse was six years (as in assault) rather than three years (as for other personal injury claims). The decision by the House of Lords in A v Hoare that the appropriate limitation period was three years meant also that a Claimant could seek the discretion of the court to disapply the limitation period under s 33 of the Act where previously that remedy had not been available. At the same time the House of Lords also determined in a linked case Young v Catholic Care (Diocese of Leeds) and the Home Office that the test of a Claimant’s date of knowledge under s 14 of the Act was a wholly objective test where hitherto it had been considered to be at least partly subjective. The House of Lords also took the opportunity to give some important guidance as to the exercise of this discretion in historic child abuse cases.
  2. The leading speech was given by Lord Hoffmann. He pointed out that one consequence of their lordship’s decision was that evidence about the Claimant’s psychological state as a consequence of his injury, and whether he could reasonably have been expected to institute proceedings would fall to be considered as part of the s 33 discretion rather than, as previously, as part of the assessment of the date of knowledge under s 14. As he explained in paragraph 49:
“In Horton v Sadler [2007] 1 AC 307 the House rejected a submission that section 33 should be confined to a “residual class of cases”, as was anticipated by the 20th Report of the Law Reform Committee (Cmnd 5630) (1974) at para 56. It reaffirmed the decision of the Court of Appeal in Firman v Ellis [1978] QB 886, holding that the discretion is unfettered. The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.”
  1. Lord Brown also dealt with the likely consequences of the change in approach:
“85. First, insofar as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at para 52 that is likely to bear significantly upon the possibility of having a fair trial.
86. Secondly, through the combined effects 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 upon 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 damages 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 surely 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.
87. Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffmann at paragraph 36). It is not to be supposed that the exercise of the court’s section 33 discretion will invariably replicate that position.”
  1. The change brought about by the decision of the House of Lords in A v Hoare was further considered by the Court of Appeal in B & Others v Nugent Care Society [2009] EWCA Civ 827 when the following warning was given at paragraph 21:
“where a judge determines the section 33 application along with the substantive issues in the case he or she 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. To do otherwise would, as the court said, be to put the cart before the horse.”
  1. A useful summary of the guidance in the above case was provided by Mr Justice Males in NA v Nottinghamshire County Council [2014] EWHC 4005 (QB):
“The application of this test in cases involving allegations of historic child abuse was considered by the Court of Appeal in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516, where a number of previous authorities were reviewed. In summary, and without attempting to be exhaustive, the position is as follows:
i) The burden is on the claimant to show that it would be equitable to disapply the limitation period.
ii) Where more than one claim is brought by a claimant, the discretion should be exercised separately in relation to each claim.
iii) The longer the delay, the more likely it is that the defendant will be prejudiced, but this will always depend on the issues and the nature of the evidence going to those issues. Delay is not critical in itself, but only to the extent that it has an effect on the defendant’s ability to defend the claim.
iv) If a fair trial is no longer possible, that will be the end of the matter. An action cannot be allowed to proceed if that would result in an unfair trial. But if a fair trial is possible notwithstanding that there is some prejudice, the balance of injustice needs to be considered, weighing whatever prejudice the defendant has suffered in the light of all the circumstances of the case.
v) The troubled background of many claimants complaining of child abuse must be taken into account. This will include, where applicable, the fact that the lives of many such claimants deteriorate into alcohol and drug abuse and crime, often caused to some extent by their childhood experiences. The law must also recognise the inhibitions which abuse will often cause, making it difficult or impossible for claimants to describe what has happened to them, sometimes until well after they reach adulthood. Such considerations may provide a good reason for delay in commencing proceedings.
vi) Developments in the law relating to vicarious liability (and, I would add, non-delegable duties) have made it easier for a claimant to establish liability against an employer or similar defendant because, in cases where the defendant is responsible in law for the conduct of the abuser, all that the claimant needs to prove is the fact of the abuse; in such cases it is no longer necessary to prove a systemic failure on the part of the defendant; in consequence, the evidential focus in such cases is likely to be narrower than it previously was; so too, therefore, the effect of delay on the possibility of a fair trial will generally involve a narrower enquiry.
vii) Ultimately the discretion is wide and unfettered, with all relevant circumstances needing to be taken into account, including those mentioned in section 33 itself, although this list is not exhaustive.”
  1. The final guidance I intend to refer to is from Lady Justice Smith in Cain v Francis [2008] EWCA Civ 1451 where at paragraphs 73 and 74 she helpfully summarises what the essence of the discretion under section 33 amounts to:
“73. It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.
74. Although the delay referred to in section 33(3) is the delay after the expiry of the primary limitation period, it will always be relevant to consider when the defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence: see Gwentoys. If, as here, a defendant has had early notification of a claim and every possible opportunity to investigate and to collect evidence, some delay after the expiry of three years will have had no prejudicial effect.”
  1. Expert evidence on the issue of limitation
Both Professor Maden and Ms Farrell were asked to comment on the reasons for and the effect of the Claimant delaying for many years in bringing a claim. According to the joint statement (paragraphs 38-42) they were in agreement on these issues. They both agree that the delay in complaining, even for cases of sexual abuse, in this case is longer than usual at around 33 years. They agree that the most likely explanation for the delay is that the thought of complaining did not occur to him until a fellow prisoner referred to the advertisement in Inside Time. They agree that there is nothing other than his self-report to suggest that thoughts about St William’s troubled him before then. They agree that whatever the reasons for the delay, it made a comprehensive assessment of the case extremely difficult (Professor Maden would say impossible) because of a deterioration in the cogency of the evidence as a result of the passage of time. They agreed that the usual problems associated with the passage of time are increased when alcoholism is involved because alcohol further impairs memory. The absence of school and social services records was alluded to together with the absence of mental health treatment records either in or out of prison until about 2007. Both experts felt that records from the Claimant’s stay at HMP Grendon would have been particularly useful as this is a prison with a renowned therapeutic regime. They both agree that it would have been much easier to assess the case had it been brought within the time limits.
  1. The parties’ submissions on the issue of limitation
Generic
Both parties made generic submissions which applied to all five cases I heard. Leading Counsel for the Defendants pointed out that there is a tension between the court deciding on the reasons for the delay in issuing proceedings without actually making a finding of fact whether the abuse in fact occurred. The Defendants characterise the various Claimants as not being psychologically disabled from complaining of abuse but expressing the explanation that they were ashamed and embarrassed and had put the issue to the back of their mind, only for these concerns to evaporate when the chance of compensation arose. The lack of contemporaneous documentation in many cases is a serious prejudice to the Defendants it is claimed. In the case of IJ there were 15 volumes of documents, 14 of which contained various contemporaneous records. This, the Defendants say, puts into context the documentation which can be available when a claim is made more promptly albeit still outside the primary limitation period. The question is whether the absence of these documents creates a material prejudice to the Defendants, or, it was submitted, the risk of material prejudice given that the content of the missing documents cannot be known. The case of IJ showed that the House Log recorded the Claimant’s welfare and demeanour at the relevant time and records of social work visits were useful in recording what the Claimant had said about whether he was happy and wished to stay at St. Williams. The Defendants submit that if the claim was brought in time they would have been in a materially better positon to defend it with the numerous documents which would then have been available. As St William’s had closed in 1992 (as far as these Defendants at least were concerned) it was fanciful to expect them to have retained all relevant documents when these claims were not intimated until 2007. The court was reminded that the burden was on the Claimant to persuade the court to exercise its discretion under s 33 Limitation Act 1980.
  1. Leading Counsel for the Claimant recognised that there may be missing documents but these would never assist the court in deciding whether the abuse actually took place because if it had taken place it would never be recorded. There are accurate records of when each Claimant was at St William’s and when each of the alleged perpetrators worked there. It was submitted that the documentation would only be relevant to peripheral issues and would mainly be used to attack the credibility of the Claimants. This would be of limited value as all the Claimants have extensive criminal records including offences of dishonesty in any event. The appropriate test is whether it is equitable to allow the claim to proceed and there is no minimum number of documents required for a fair trial to take place.
  2. It was submitted that it was not surprising that the Claimants would respond positively to a letter from a solicitor about the right to make a claim arising from abuse at St William’s. Before then the shame and embarrassment of the abuse had prevented disclosure but, it was submitted, the individual Claimants would know they were not alone, the abuse would be investigated and the fact that they had been sought out meant that their convictions would not bar them from justice. The fact that victims of child sexual abuse are often too ashamed and embarrassed to discuss or report the abuse is well recognised both by psychologists and in previous legal authorities. Victims of male on male abuse, particularly where the victim is a teenage boy where there is a power imbalance with the perpetrator are particularly prone to silence. Other frequent characteristics are, inconsistent or incremental reporting, and voluntary return to the place where the abuse took place. It was submitted that false memory was unlikely to occur in Claimants where there was no suggestive intervention from dubious therapists. Even if missing documents were to show that the Claimant at the time expressed positive thoughts or the wish to stay longer at, or return to St William’s that would not be probative or helpful evidence where victims of child sexual abuse often express such thoughts. It was pointed out that James Carragher admitted abusing 13 boys and there appeared to be no contemporaneous record of outward signs or symptoms leading to the suspicion that abuse had taken place.
  3. Leading Counsel for the Claimant also made submissions about the context in which the abuse took place given that St William’s was a home with a moral and legal duty to protect vulnerable young boys. It was submitted that the Defendants as organisations managing the home should have been aware from information in their possession in the 1970’s and 1980’s that children were at risk. There were at least two complaints against Brother James and one against Father McCallen which should have rung alarm bells and caused more robust investigation into the risk of abuse at the time. It was submitted that this could be considered as relevant to all the circumstances of the case in s 33 (3) Limitation Act 1980.
  4. Specific to the case of EF
The Defendants complain that proceedings were not commenced until 29 years after the cause of action arose. Brother Thomas evidently died in 1976 without the Defendants being able to make any enquiries about these and similar allegations. The volunteer known as Gabrielle has never been traced but the Defendants contend that they would have had a much better prospect of finding her if the claim had been brought before the expiry of the limitation period in 1978. Whilst Brother James and Brother X were able to give evidence they were being asked about events some 43-44 years ago. In this case there are just over three volumes of documents but a number of significant documents are missing according to the Defendants: the Claimant’s personal file at St William’s; the personnel file for Brother Thomas; the House Logbook for 1972/3; social services records; Aycliffe Assessment Centre records; St Peter’s Approved School records; the Claimant’s prison records before 2007 and in particular the records from HMP Grendon.
  1. It was submitted by the Claimant that the Claimant’s failure to report both physical and sexual abuse at the time he was a pupil at St William’s was entirely understandable given the position he was in. Thereafter he did not feel able to report the abuse due to feelings of embarrassment and shame and a wish to repress the painful memories which he partly achieved through alcohol abuse and not to discuss them. The main perpetrator Brother James was able to give evidence as was Brother X and so there was little evidential prejudice to the Defendants. There was a significant amount of documentation from the Prison Service obtained in more recent years which could be used either to support or undermine the Claimant’s claim. It was alleged that the Defendants were aware of allegations against Brother James in 1993 and 2003 and should have done more to investigate the allegations.
  2. Analysis of the exercise of discretion under s 33 Limitation Act 1980 in this case
I accept the burden is on the Claimant to persuade the court to exercise its discretion to disapply the limitation period. The overarching test is whether it would be equitable to allow the action to proceed and the court has an unfettered discretion and enjoined to have regard to all the circumstances of the case. The court should in particular have regard to the particular circumstances set out in section 33 (3) and it would be appropriate to consider each in turn.
  1. Section 33 (3) (a) the length of, and the reasons for, the delay on the part of the plaintiff
The Claimant alleges that the abuse took place between July 1972 and March 1973 when the Claimant left St William’s. The Limitation period started on 13th June 1975 and expired on 13th June 1978. Proceedings were issued on 17th October 2007 which means that the delay in issuing proceedings after the limitation period expired is 29 years.
  1. The reasons for the delay are essentially that the Claimant was too embarrassed and ashamed to report the abuse, for reasons which are common to many victims of child sexual abuse (see above) and that he was further deterred by his wish to put the painful experiences to the back of his mind and repress them. These reasons were asserted briefly in the Claimant’s statements and repeated to the two expert witnesses. I recognise the tension referred to by Leading Counsel for the Defendant in making an assessment of the truth of these assertions without descending into a finding of fact about whether the abuse in fact occurred. It seems to me that the only way I can resolve this difficulty is by making an assumption that the abuse in fact occurred or at least that it may have occurred for the purposes only of this assessment otherwise I will fall foul of “putting the cart before the horse” as deprecated in authorities referred to above.
  2. Whilst I recognise and appreciate that it is typical for a victim of child sexual abuse to want to both repress the memory and avoid disclosure of the abuse the justification for non-disclosure is not self-proving and requires some assessment of the individual alleged victim. There was very little in his witness statements to explain why he had delayed in reporting the abuse. He explained in paragraph 30 of his first witness statement that he had not complained to his family, partly because he was very ashamed of what had happened and partly because he did not think he would be believed as his parents were staunch Catholics. He claimed to have blocked out the memories through drink and that he didn’t realise he could complain until he saw the advert in Inside Time. He appears to have told Ms Farrell that he was too ashamed to talk about the abuse but only mentioned to Professor Maden his concern about not being believed. When giving evidence he referred to being embarrassed giving the first statement to his solicitor who happened to be female. He used this an explanation why he was unable to disclose that the abuse had included anal digital penetration and oral sex. He could not explain however why he had been able to tell Ms Farrell about these distressing allegations in 2008 when, of course, she was also female. Although he did mention being too ashamed to talk to other boys about it, he did not speak much about shame and embarrassment as a continuing reason not to disclose the abuse in later life. He said in prison he had chosen not to mention the abuse but did not specifically say why.
  3. As mentioned above Ms. Farrell and Professor Maden agreed that the most likely explain for the delay was that it simply did not occur to the Claimant to complain. This explanation, and the fairly lukewarm mention of shame and embarrassment in the evidence both in writing and orally seem to me to fall some distance short of what Lord Hoffmann described in A v Hoare:
“that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.”
  1. 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 in time
I accept that the twenty-nine year delay in issuing proceedings is bound to have had some effect on the cogency of the evidence given by any of the witnesses. Regrettably, a further nine years have passed since the issue of proceedings but this further delay is in part due to the need to proceed to the Supreme Court on the vicarious liability argument and the adjournment of the trial to allow the 2015 criminal proceedings to take place. It would be wrong to blame the Claimant for this further delay. The witnesses are however being asked to remember events which occurred between 43 and 44 years ago. Brother Thomas died in 1976 so his evidence may well have been lost even if the claim was brought in time. It is possible that the witness Gabrielle to whom the Claimant complained may have been easier to trace in 1978 than now when it is entirely understandable that she cannot be found.
  1. In terms of cogency the Claimant accepted early in his evidence that his memory was not good, having been affected by both alcohol abuse and heroin addiction- “some of it is like looking through a fog” he said. He had to accept that he had been wrong both about when he first went to St William’s (he thought aged 12) and how long he had stayed there (he thought 18 months). He knew his father had died whilst he was in custody but it was never satisfactorily established in evidence when this had occurred or where he was at the time. There were a number of other inconsistencies in his evidence which I will deal with in more detail later. So far as cogency is concerned he gave his evidence as best he could, and was not an obviously unreliable witness, but matters of detail, in particular dates often eluded him understandably. The Defendant’s witnesses did their best to recall events from so long ago but as neither had any specific recollection of this particular Claimant they were limited to looking at the Claimant’s allegations from his witness statements and explaining why the particular circumstances are unlikely to have occurred.
  2. There is no doubt that the absence of some of the records is potentially prejudicial to the Defendants and that it has made the task of the experts reporting on causation particularly difficult. There are virtually no records from St William’s other than those proving when the Claimant and the alleged perpetrators were present. The absence of social services records and the House Log Book is particularly unfortunate. The records from Aycliffe, St Peters and HMP Grendon would have been particularly useful to the experts in making an assessment of what effect if any the alleged abuse had on the Claimant. It is not surprising that in the joint statement the experts agreed (in paragraph five):
“that, given the paucity of records and the length of time that has passed, it would be a respectable and defensible professional stance for any expert to say that it is simply impossible to reach conclusions about the Claimant’s early mental health problems because there are too many uncertainties”
  1. 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
This particular provision is normally concerned with how a defendant responds to a claim being made, for example if disclosure is delayed or obstacles placed in the claimant’s path. No such allegations are made in this case but the Claimant has contended that the Defendants should have investigated the allegations of abuse more thoroughly when they became aware that Brother James was being investigated between 2001 and 2003. I am not convinced this is a fair criticism. It seems to me that the Defendants would be justified in leaving the investigation to the police, if only to ensure they did not interfere with the police enquiry. By this time the home had been closed for 10 years and there was no immediate need for an investigation into historic allegations when they were aware the police were already carrying out such an investigation.
  1. The duration of any disability of the plaintiff arising after the date of the accrual of the cause of action
Here the disability ended on the Claimant’s 18th birthday namely on 13th June 1975 approximately two and a quarter years after the last allegation of abuse.
  1. The extent to which the Claimant 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
On the Claimant’s case he was unable to consider taking action about the abuse until he learnt others were also making a claim in 2005. I have to bear in mind however that he would have known even at aged 18 that what had happened to him was wrong. He appears to have given his first statement to solicitors in October 2007 and started proceedings shortly thereafter. The intervening period is unexplained but in the context of the overall delay not significant.
  1. 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
I accept that the Claimant knew enough about his cause of action on attaining his majority but on his case was disabled from pursuing his claim due to the psychological effects of the abuse. He first took legal advice in 2005. There is no evidence that he took advice from either lawyers or health professionals at any time in the intervening period although he would say it was because he was too embarrassed to do so. He certainly had the opportunity to do so when he was asked for mitigation about his sentences or he was being assessed for parole or re-categorisation in prison.
  1. All the circumstances of the case
I will deal here briefly with the novel submission put forward by Leading Counsel for the Claimant that the high level of moral culpability on the part of the perpetrators and Defendants should inure for the benefit of the Claimant in the balancing exercise. Whilst there is no doubt that the perpetrators were morally culpable and that the Defendants could reasonably be criticised for the way they investigated the allegations of abuse which preceded the police prosecutions I am not convinced they should weigh significantly in the Claimant’s favour. If they did it would be difficult to see how a Defendant could ever succeed on the section 33 issue when attempting to defend an allegation of child sexual abuse. There would always be a high level of moral culpability attached to the allegations. The system of compensation for the commission of a tort in this country does not involve an assessment of moral culpability. The breach of duty may be accidental (in a strict liability case), negligent, reckless or intentional. The compensation is assessed on the same basis (other than in cases of aggravated or exemplary damages).
  1. In previous decisions under section 33 the court does not normally pay particular attention to the strength or weakness of the claim (unless it is very weak) and so it is hard to see why the court should take into account how morally culpable a defendant is when deciding whether to excuse a claimant for not issuing proceedings within the limitation period. As Parker LJ showed in Hartley v. Birmingham City District Council [1992] 1 WLR 968, CA, at 979G-H, such a finding is usually neutral on the balance of prejudice:
“… in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff’s case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied … as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant’s ability to defend.”
  1. Decision on the exercise of discretion under section 33
I have considered all the circumstances of the case including the particular circumstances set out in section 33 (3) as adumbrated above. The delay between the expiry of the limitation period and the issue of proceedings in this case is long by any standards. The cogency of the evidence of both parties is likely to suffer as a consequence of the passage of such a substantial period of time alone. On the particular facts of this case however, there are further concerns about the cogency of the evidence in terms of the Claimant’s vagueness on details and the fact that two of the three alleged perpetrators who have given evidence have no actual memory of the Claimant. The documentation in this case is virtually all post 2000 and there is little or no contemporaneous documentation. This is a loss which I accept particularly affects the Defendants who are seeking to challenge the Claimant’s uncorroborated recollection. The experts have both agreed that the paucity of documentation makes their assessment of causation very difficult if not verging on impossible. Whilst an explanation has been provided by the Claimant for the delay in disclosing the abuse and issuing these proceedings it has not been made with any real force. The experts were agreed that the most likely explanation for the delay was that it had not occurred to the Claimant to make a claim. If this were the only reason it would be unlikely to weigh heavily in the scale. The other factors set out above appear to be either neutral or at least not beneficial to the Claimant.
  1. This is not a case where the Claimant has put forward a powerful argument justifying his delay in disclosing the abuse and issuing proceedings. Whilst I accept that victims of sexual abuse can often put forward such an argument this particular Claimant has not done so with any real conviction, either in his written evidence or in the witness box. It is a case where the Defendants can, with good reason, point to missing documentation which would have been highly material and could have assisted them in their defence of, or investigation of the claim. I have reached the conclusion that it would be unfair to expect the Defendants to meet this claim at trial after such a long period of time. The lack of contemporaneous documents, in my view, coupled with the length of the delay, means that a fair trial is no longer possible. In my judgment, it would not be equitable to allow this claim to proceed and accordingly I intend to dismiss it. “

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