LIMITATION: SECTION 33 APPLICATION SUCCESSFUL – 38 YEARS AFTER THE EVENT COMPLAINED OF

June 5, 2019 · by · in Applications, Limitation

In FZO v Adams & Anor [2018] EWHC 3584 (QB) Mrs Justice Cutts exercised the Section 33 discretion in a case brought 25 – 30 years after the expiry of the applicable limitation period and where the events happened 38 years previously.

THE CASE

The claimant had been sexually assaulted by the first defendant whilst he was a schoolboy. The first defendant was convicted of indecent assault and buggery in 2014, relating to incidents that occurred in 1980 – 82.  A letter of claim was sent in 2015 and a limitation freeze agreed in November 2013. Proceedings against the assailant and the local authority  were issued in June 2016.

GUIDANCE ON SECTION 33 IN THESE CIRCUMSTANCES

The judge considered the guidance given in relation to section 33 of the Limitation Act 1980, in relation to sexual abuse cases in particular.

    1. There have been a number of decisions on the application of the principles in section 33. I do not propose to analyse each of them in this judgment as they are well known and not in dispute. It seems to me that useful guidance on the facts of this case is to be found in the following.
    2. In the leading case of A v Hoare [2008] UKHL 6 dealing with the reasons for the delay Lord Hoffmann at paragraph 49 of the judgment spoke of the unfettered nature of the discretion afforded by S33 and said this:
“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. In the same case Lord Brown, whose observations Lord Hoffmann expressly found “extremely valuable”, said this at paragraph 86:
“…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 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.”
    1. Baroness Hale at paragraph 60 also placed importance on the reasons for the delay stating that:
“A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sexual abuse. Much will depend upon the facts of the particular case.”
    1. AS v Poor Sisters of Nazareth [2008] UKHL 32 concerned a Scottish case on limitation. However as the issues on the disapplication of the limitation period are the same under Scottish and English law it is of assistance on that matter. Indeed English authorities were cited in the course of both argument and Lord Hope’s judgment in which he succinctly set out the test to be applied thus:
“The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation of the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour.”
    1. I have heard evidence in this case and am thus determining the section 33 issue along with the substantive issues in it. It is clear from paragraph 74 of the judgment of Lord Justice Auld in KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, approved in B v Nugent Care Society [2009] EWCA Civ 827, that in such circumstances I 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. This is because much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted in the course of the trial. That is not to say that my overall assessment of the evidence is irrelevant to the issue of limitation. As was made clear in JL v Bowen [2017] EWCA Civ 82the correct approach is for the court to adopt an overall assessment of the evidence, which includes weighing up any adverse findings made against the claimant, and the effect of such delay on the same. The reason is given in the judgment of Lord Justice Burnett, as he then was, at paragraph 26:
“The logical fallacy with which Lord Clarke MR was concerned in paragraph 21 of the Nugent Care Society case and Auld LJ in paragraph 74(vii) of the Bryn Alyn case was proceeding from a finding on the (necessarily partial) evidence heard that the claimant should proceed 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 on the reliability of the claimant himself”
Burnett LJ then gave the example of a claim brought arising after an alleged accident which the judge, having heard evidence, concluded did not occur. In such circumstances the claimant could not prove that it would be equitable to disapply the limitation period having regard to the balance of prejudice. He concluded that it is not realistic to shut one’s eyes to findings and conclusions reached following a full trial. I therefore begin with the evidence.

SECTION 33 AND THE FACTS OF THIS CASE

The length and reasons for the delay on the part of the claimant

The judge held that the delay was linked to the claimant’s injuries arising from the sexual abuse.
  1. I accept the evidence of Dr O’Neill that it is impossible to look at the behaviour of the claimant and first defendant after the claimant left school separately from the grooming and abuse of him while he was at the school. I find that the delay in bringing these proceedings was because the claimant did not recognise that what happened to him at the hands of the first defendant was abuse until his breakdown in 2011. Had he done so it is inconceivable that he would have continued to be in touch with the first defendant in the way that he was. He failed to see it as abuse by reason of being groomed by the first defendant while it was happening. The way that he had been conditioned to think by the first defendant continued to operate in his mind. I agree with the submissions of Mr Seabrook that the delay in this case is a consequence of the grooming and emotional manipulation of the claimant which caused him to depend on the first defendant and to tolerate his behaviour rather than to sue.

Cogency of the evidence

  1. There is no doubt that there will be some difficulty in determining the reason for the claimant’s mental health difficulties following a breakdown which took place some 24-31 years after the abuse occurred. Having said that there is some force in the contention made by the claimant that there would have been difficulty, perhaps even greater difficulty, in predicting when the claimant was 21 or 22 what the effects of the abuse would be on his future life. The burden of proving causation is on the claimant himself. The exercise of determining it will require a detailed scrutiny of the claimant’s past life and history, together with an examination of the available evidence, particularly the medical evidence. It will also involve an assessment of the claimant’s reliability as a witness. The courts are well used to carrying out such assessments. Given the delay in this case they would require particular care.
  2. I have come to the conclusion that the delay has not had such an impact on the cogency of the evidence that the defendants have been exposed to the real possibility of significant prejudice.

The conduct of the defendants after the cause of action arose

  1. Section 33(3)(c) requires the court to consider the conduct of the defendants after the cause of action arose. The type of conduct relevant for these purposes would be any obstructive behaviour on the part of either defendant which might have prejudiced the claimant.
  2. There is no dispute that during the time when the abuse was occurring the deputy head of the school, David Jones, saw the claimant at the home address of the first defendant. There is some dispute as to whether the claimant was half naked at the time. I have already accepted that on occasion the claimant can over dramatise and I am unable to say whether his assertion that he was half naked is an example of that. I work therefore on the basis that he was not. There is nonetheless force in the claimant’s submission that his presence at the house should have aroused suspicion and I accept that it presented the school with a contemporaneous opportunity to make further enquiry which it did not take

The duration of any disability of the plaintiff arising after the date of the accrual of the cause of action.

  1. Section 33(3)(d) requires the court to have regard to the duration of any disability of the claimant arising after the date of the accrual of the cause of action.
  2. It is accepted that the claimant was not under a legal disability after his 18th birthday. Thereafter the limitation period began to run in the usual way. It does not seem to me that these circumstances should have any effect on the exercise of my discretion.

 

The extent to which the claimant acted promptly and reasonably once he knew that he might have an action for damages and the steps he took to obtain medical, legal or other expert advice and the nature of that advice.

  1. Section 33(3)(d) and (e) require me to have regard to these issues.

  2. There was undoubtedly a delay in the claimant instigating a civil claim after he reported the abuse to the police. It seems to me however reasonable for him to have waited until the conclusion of the criminal proceedings given that, whatever the reason, he was psychiatrically unwell at the time. I accept that it was reasonable in those circumstances for him to deal with one thing at a time. In the circumstances of this case I consider his solicitors to have been entirely right not to have taken a witness statement from him and to have waited to receive his statement from the police. I take into account that had he instituted the civil claim before the criminal proceedings were concluded it would have been stayed in any event. There has been no additional prejudice to the defendants in the additional delay.

Conclusion on the issue of limitation

  1. I make it clear that I have considered the question of limitation in relation to each defendant separately. Taking into account all the circumstances of this case and in particular the various issues set out in section 33(3) to which I have already referred I am satisfied that the claimant has established that it would be equitable to allow the action to proceed in relation to each. I take the view that, notwithstanding the delay that has occurred, through no fault on the part of the claimant, the ability of each defendant to defend the issue of the extent of liability has not materially been affected and a fair trial of the issue of causation is possible.
  2. I therefore direct that the provisions of section 11 of the Limitation Act 1980 shall not apply to this action.
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