APPLICATION UNDER SECTION 33 SUCCEEDS MORE THAN 24 YEARS AFTER EXPIRY OF LIMITATION PERIOD

January 30, 2020 · by · in Applications, Limitation, Personal Injury

In BXB v Watch Tower And Bible Tract Society of Pennsylvannia & Anor [2020] EWHC 156 (QB) Mr Justice Chamberlain allowed the claimant’s application under Section 33 of the Limitation Act in a case that was issued more than 24 years after the expiry of the primary limitation period.

THE CASE

The claimant brought an action for damages. It was common ground that in 1990 the claimant was raped by a spiritual leader of the defendant.  In 2014 that person was convicted of the rape and other offences of a sexual nature. The claim was put in two ways (i) vicarious liability for the acts of the spiritual leader; (ii) negligence in failing to carry out an adequate issue. One major issue was whether the defendant was vicariously liable for that person’s actions.  The action was brought considerably out of time.

THE JUDGE’S REVIEW OF THE PRINCIPLES RELATING TO SECTION 33

The judge reviewed the relevant authorities in some detail:-
    1. It is now settled that an action for deliberately inflicted personal injury, as well as for negligently inflicted injury, is subject to the primary limitation period in s. 11 of the 1980 Act – i.e. 3 years from (a) the date on which the cause of action accrued or (b) the date of knowledge if later: A v Hoare [2008] 1 AC 844.
    2. That means that the primary limitation period for the claim arising out of the rape (the vicarious liability claim) expired on 30 April 1993. The primary limitation period for the investigation claim expired some time later. The Claim Form in this case was issued on 8 June 2017, after the agreement of a 3-month moratorium on limitation from 6 January 2017 to 6 April 2017. The result is that both the vicarious liability and the investigation claims are time-barred unless I conclude that it would be equitable to allow either or both of those claims to proceed under s. 33 of the 1980 Act.
    3. Section 33(1) requires the court to consider whether it would be equitable to extend time having regard to the degree to which the provisions of s. 11 would prejudice the claimant and the degree to which any decision of the court to extend time would prejudice the defendant. Section 33(3) provides as follows:
‘(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. In A v Hoare, Lord Hoffmann (with whom Lord Walker, Lord Carswell and Lord Brown agreed) emphasised at [49] the importance of taking into account the reasons for the delay and giving due weight to the question whether ‘the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered’. Lady Hale agreed, saying at [60]:
‘I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffmann. The reasons for the delay are highly relevant to that exercise, as of course at the prospect of a fair trial. 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 sex abuse. Much will depend upon the circumstances of the particular case.’
    1. In Cain v Francis [2009] QB 754, Smith LJ (with whom Maurice Kay LJ and Sir Andrew Morritt C agreed) said at [57]:
‘it does not seem to me that the length of the delay can be, of itself, a deciding factor. It is whether the defendant has suffered any evidential or other forensic prejudice which should make the difference.’
    1. In B v Nugent Care Society [2010] 1 WLR 516, Lord Clarke MR (giving the judgment of the Court) pointed out at [14]-[15] the substantial effect that the decision in A v Hoare had had on historic sexual abuse cases – particularly those arising from abuse in care homes:
’14… There are two critical points of distinction to which we have already referred. The first is that previously it was necessary for the evidence to cover the whole system being operated in the relevant home over a long period and for the court to consider whether there was a relevant breach of duty. Now no such analysis is required. In order to succeed the claimant has to show the following: (1) that he was assaulted, that is that the alleged abuse occurred; (2) that the defendant was vicariously responsible for the abuse: (3) that the abuse caused the alleged psychological or psychiatric damage; and (4) quantum.
15.  In our opinion, the difficulties of establishing those matters can be overstated. On the claimant’s side the fact of the abuse depends largely, if not entirely, upon the evidence of the claimant and must be set against any evidence available to the defendant. The effect of [Lister v Hesley Hall Ltd [2002] 1 AC 215] is that in most cases, once abuse by an employee of the home is established, vicarious liability will follow.’
    1. In this case, of course, vicarious liability does not simply ‘follow’ from the fact of the rape. At [21]-[22], Lord Clarke said this:
’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.
22.  That is, however, simply to emphasise the order in which the judge should determine the issues. When he or she is considering the cogency of the claimant’s case, the oral evidence may be extremely valuable because it may throw light both on the prejudice suffered by the defendant and on the extent to which the claimant was reasonably inhibited in commencing proceedings. Thus, if the claimant’s case is beset by inconsistencies and the claimant shows himself in evidence to be unreliable, the court may conclude that the delay is likely to prejudice the defendant in the way contemplated in Nash v Eli Lilly & Co [1993] 1 WLR 782 , namely by being put to the trouble and expense of successfully defending proceedings and then not being able to recover costs against impecunious claimants. In those circumstances, viewing the matter more broadly, as A v Hoare enjoins the courts to do, it may well be that it would not be equitable to allow the claimant to proceed. On the other hand, if the evidence of the claimant is compelling and cogent that the abuse occurred, and it is said that it was the abuse that inhibited him from commencing proceedings, that is surely a compelling point in favour of the claimant.’
    1. The Court of Appeal returned to this passage in Bowen Archbishop v JL [2017] EWCA Civ 82. Burnett LJ (with whom Sir Ernest Ryder and Lewison LJ agreed) said this at [26]:
’26.  The logical fallacy which Lord Clarke MR was concerned with 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 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 ten years after an alleged accident and seeks an order to disapply the limitation period of three years. The defendant has lost its 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.’
  1. In CD v Catholic Child Welfare Society [2018] EWCA Civ 2342, Lewison LJ (with whom Rafferty LJ agreed) noted that delay of itself does not preclude disapplication of the limitation period. Rather, ‘[w]hat is of importance is what prejudice the defendant has suffered by the delay’.
  2. The question whether to extend time under s. 33 must be considered for each cause of action separately: Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus) [2018] EWHC 1895 (QB), at [73].

THE EXERCISE OF THE DISCRETION IN THIS CASE

The judge exercised the discretion in favour of the claimant.
Conclusions on limitation
    1. I consider first the length of the delay and the reasons for it. On any view, the delay is substantial – the claim form was issued more than 24 years after the expiry of the primary limitation period for the vicarious liability claim. It is for Mrs B to explain the delay. Mrs B’s explanation must be taken in stages. At first, immediately after the rape, Mrs B says that she did not report it because she had been taught to forgive a brother who was truly repentant and because she was terrified of bringing shame on Jehovah’s name. As to her state of mind after the investigation, she says this:
‘In the weeks following my disclosure to the elders about the rape, and their holding me morally responsible for it, I found myself unable to leave the house. I avoided seeing people. The needlessly humiliating way in which the investigation had been conducted, its erroneous conclusion and the knowledge that it seemed that I was universally disbelieved, caused me to have suicidal thoughts and become afraid to leave my home for weeks on end.
My sense of loneliness, betrayal and despair was heightened due to my reliance on the Jehovah’s Witness community and by the fact that I felt scorned and let down by the Elders in whom I had placed so much of my trust.
I couldn’t function, I couldn’t eat or sleep. The worst part was that nobody could believe me. Maybe a year after the incident, I started going to see a psychiatric nurse, I would just sit there wringing my hands while I was talking to her. The experience of reporting Mark to the Elders and them protecting him reinforced my sense that no one would believe me and doubled the shame and guilt that I felt in relation to the rape.’
Describing her reasons for not bringing the claim more quickly, Mrs B says:
‘When later I did report the rape to the elders, I was so humiliated and upset by the way it was investigated and by their decision not to take any further action that I felt betrayed. I was told by the Elders not to tell anyone else about it. I obeyed this direction and did not go to the police, as I should have done. I did not think I would be believed anyway, just as everyone else appeared to disbelieve me. Instead I left the congregation and my family.’
  1. Mrs B conceded in cross-examination that she had not been told, in terms, not to go to the police. There was evidence that she had been encouraged to go to the police by FXC and possibly by others, though I accept she also felt social pressure not to bring shame on the name of Jehovah by making a complaint to the police against Mark Sewell. But there was nothing to gainsay Mrs B’s evidence about the effect on her of the elders’ investigation and its outcome. I accept her evidence that she was humiliated and upset and, as a result, felt that she would not be believed if she reported the matter to the police. That was consistent with the medical evidence, which suggests that the investigation itself triggered at least one episode of depression and the trial in 2014 triggered another such episode, with additional symptoms of PTSD. The fact that, for large parts of the period between 1990 and today Mrs B suffered no diagnosed mental illness does not mean that the psychological effects of the rape and investigation were absent during those periods. Indeed, the absence of symptoms requiring specific medical intervention for substantial periods between the rape and the present day is likely to be explained by the fact that during those periods she managed to avoid any concentrated focus on the rape and the subsequent investigation.
  2. I do not accept Ms Foster’s submission that, in the absence of psychiatric evidence that she was disabled from bringing the claim, ‘she has not provided any reason for not pursuing her claim, other than that she didn’t want to’. There is nothing in the statute, or the case law interpreting it, to suggest that the only valid reason for delay in a case of this kind is a diagnosed psychiatric disability covering the entire period of the delay. Section 33(3)(a) is framed in deliberately general terms. It invites focus on the ‘reasons’ for the delay. Mrs B has given evidence of her reasons, which I accept as true: that following the elders’ investigation Mrs B felt humiliated, upset and ashamed; and, as a result, she felt that she would not be believed if she raised the matter formally again. I see no reason why that should not count as a good reason for the purposes of the statute, to be taken into account alongside the other factors set out in s. 33(3) insofar as they are relevant.
  3. The key factor in this case is the effect of the delay on the cogency of the evidence. Here, it is important to consider the vicarious liability claim and the investigation claim separately. I start with the vicarious liability claim. In this case, unlike many civil cases in which sexual abuse is alleged, the fact of the rape is admitted. The principal area of dispute is about the extent to which Mark and Tony Sewell’s positions as elders played a part in it. That is something on which the direct evidence could only ever come from a very few witnesses – Mrs B, Mr B, Mark, Mary and Tony Sewell. The Defendants could have sought evidence from Mr B or from Mark or Mary Sewell. There is nothing to indicate that they have ever done so. Although Tony Sewell died in December 2015, there appears to have been no attempt to seek evidence from him before that. This was despite the fact that Tony Sewell’s request that Mrs B act as Mark Sewell’s confidante, and the significance of the fact that it came from an elder, had both featured in Mrs B’s evidence in the criminal trial in 2014 and were both prominent in the account given in the letter before claim dated 9 March 2015; and despite the fact that Mr Achonu interviewed other potential witnesses in September 2015.
  4. As to the investigation claim, it is common ground that Mrs B was expected to attend to meetings at which she was questioned by elders about how the rape occurred. So far as the first meeting with the investigating elders is concerned, the Defendants have been able to call the two elders who they say undertook the investigation. The passage of time has of course had some impact on their ability to recall the precise details of what happened, but those said by the Defendants to be the key participants in that initial meeting were available.
  5. So far as the judicial committee hearing is concerned, certain witnesses who would have been available to the Defendants if the claim had been brought within the primary limitation period are not now available. But that is only the starting point. FXC was right, in my judgment, to say that none of FXC’s father, Hugh McGinty, Barrie Jones and John Wood was likely to have be in a position to give material evidence, because none was involved with the judicial committee hearing. David Newman (who chaired the committee) was interviewed before his death. Edward Lee (another member of the committee) was interviewed twice. It was notable that the Defendants did not apply to adduce Mr Achonu’s notes of those interviews as hearsay evidence once Messrs Newman and Lee had died. Mr Achonu also disclosed in cross-examination that he had interviewed Arthur Taylor (the other committee member) in September 2015. He remains alive. I cannot speculate about what Messrs Newman, Lee and Taylor told Mr Achonu on those occasions because the Defendants have maintained privilege over the notes of the interviews. That is their right, but having elected to do so, they are hardly in a good position to assert that they are materially prejudiced by the delay in bringing the proceedings.
  6. Nor is this a case where it can be said that Mrs B’s evidence, in its essentials, was so inconsistent as to be obviously unreliable (as in JL’s case). To the extent that there were disputes about the accuracy of Mrs B’s understanding of the religious obligations to which she was subject, the main evidence relevant to the resolution of these disputes came from the teaching materials and, in particular, articles in Watchtower, as explained by Mr Schofield. It is difficult to see how the evidence on these matters would have been significantly different had the claim been brought in the early 1990s. Insofar as there have been difficulties interpreting some of the entries in Mrs B’s medical notes, I agree with Mr Counsell that there is no reason to suppose that the task of interpreting these records would have been much easier even a year or two after the event.
  7. In all the circumstances, I am unable to conclude that extending time under s. 33 of the 1980 Act would cause significant prejudice to the Defendants.
  8. Ms Foster, for the Defendants, does not suggest that the matters identified in s. 33(3)(c) or (d) have any relevance here. As to s. 33(3)(e), she submits that Mrs B failed to act promptly both before and after Mark Sewell’s trial in 2014. As to the position before the criminal trial, the lack of promptness is explained by the effect the investigation had on Mrs B. As to the position after it, it must be borne in mind that the trial precipitated a significant psychiatric injury. The letter before claim was sent in March 2015. Given that enquiries were made of (some) potential witnesses in the light of that letter, I find it difficult to ascribe great significance to the delay between that letter and the issue of proceedings in 2017. It is not suggested that any separate issue arises under s. 33(3)(f).
  9. For all these reasons, I conclude for the purposes of s. 33(1) of the 1980 Act that it would be equitable to allow the action to proceed in respect of both the vicarious liability claim and the investigation claim.
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