LIMITATION: SECTION 33 CONSIDERED IN THE CONTEXT OF A CLAIM FOR SEXUAL ABUSE: DISCRETION EXERCISED WHEN PROCEEDINGS ISSUED 15 YEARS OUTSIDE THE LIMITATION PERIOD

In AB v Chethams School of Music [2021] EWHC 1419 (QB) Mr Justice Fordham provides a comprehensive review of the principles the court considers when hearing an application under Section 33 of the Limitation Act 1980, particularly in the context of allegations of sexual abuse.   The judge found that it was equitable to disapply the limitation period in a case where the events had taken place more than 20 years prior to the issue of proceedings.

 

THE CASE

The claimant (whose real name is not used in the judgment) had been a pupil at the Defendant school. Her case (accepted by the judge) was that she had been sexually assaulted by a teacher at the school whilst a student there in 1996/97.  The defendant’s case was that the assault did not take place. The defendant pleaded limitation and the court had to consider whether to exercise its discretion under Section 33 of the Limitation Act 1980.

THE JUDGMENT ON THE LIMITATION ACT ISSUE

It was accepted that the action had been brought outside the primary limitation period.  The judge reviewed the statutory context, and case law, in considerable detail.
The 1980 Act
    1. In Part 1 of the 1980 Act, Parliament set out the “ordinary time limits” for different classes of action, among which is the three-year ordinary time limit (section 11) for actions in respect of personal injuries. Time does not begin to run until the injured person has knowledge that the injury is significant (see sections 11(4)(a) and 14(1)(a)), but no issue of delayed knowledge arises in this case. Part 2 of the 1980 Act includes a statutory extension to the ordinary time limit for as long as the injured person is an infant. That means the extended ordinary limitation period expires 3 years after the claimant’s 18th birthday (see sections 28(1), (6) and 38(2)). So, where personal injuries are sustained as a child, the extended ordinary limitation period expires on the claimant’s 21st birthday. In this case, that was at the end of March 2002. It follows that Abigail was statutorily entitled to bring this claim on any day up to that date. The limitation freeze, which stopped the clock was 6 August 2017. That was 15 years and 5 months after expiry of the statutory entitlement (the extended ordinary time limit). It was more than 17 years after the unextended ordinary time limit. It was more than 20 years after the alleged events of 1996/97.
    1. Part 2 of the 1980 Act also includes section 33, by which Parliament empowered the Court to exclude (disapply) the ordinary time limit (including as extended) for actions in respect of personal injuries or death. Section 33(1) provides as follows:

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 [claimant] or any person whom [the claimant] represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom [the defendant] represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to a specified cause of action to which the action relates.

Section 33(3) provides as follows:

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 [claimant];

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the [claimant] or the defendant 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 [the defendant] responded to requests reasonably made by the [claimant] for information or inspection for the purpose of ascertaining facts which were or might be relevant to the [claimant]’s cause of action against the defendant;

(d) the duration of any disability of the [claimant] arising after the date of the approval of the cause of action;

(e) 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;

(f) the steps, if any, taken by the [claimant] to obtain medical, legal or other expert advice and the nature of any such advice [the claimant] may have received.

In this case it is common ground that the principal focus is on section 33(1), on the opening words of (3) (“all the circumstances”), and on (3)(a) and (3)(b). It is also common ground that Mr Li is not a “person whom [CSM] represents”.
A line of authorities
    1. The line of authorities cited to me by Counsel in relation to the Limitation Issue was as follows: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (High Court of Australia, 2 October 1996) (“Taylor“); KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 [2003] QB 1441 (Court of Appeal, 24 March 2003) (“Bryn Alyn“); A v Hoare [2006] EWCA Civ 395 [2006] 1 WLR 2320 (Court of Appeal, 12 April 2006) (“Hoare CA“); A v Hoare [2008] UKHL 6 [2008] 1 AC 844 (House of Lords, 30 January 2008) (“Hoare HL“); Cain v Francis [2008] EWCA Civ 1451 [2009] QB 754 (Court of Appeal, 18 December 2008) (“Cain“); B v Nugent Care Society [2009] EWCA Civ 827 [2010] 1 WLR 516 (Court of Appeal, 29 July 2009) (“Nugent“); RE v GE [2015] EWCA Civ 287 (Court of Appeal, 27 March 2015) (“GE“); CD v Catholic Child Welfare Society [2018] EWCA Civ 2342 [2019] ELR 1 (Court of Appeal, 23 October 2018) (“CD“); and FZO v Haringey London Borough Council [2020] EWCA Civ 180 (Court of Appeal, 18 February 2020) (FZO). As on all issues, I benefited from focused submissions by experienced Counsel. I will set out in the following paragraphs some of the key points to be derived from these authorities, before turning to the present case.
A principled starting-point
    1. The section 11 ordinary limitation period of 3 years from the date on which the cause of action accrued can be regarded as “the primary limitation period” (Cain paragraph 4), representing “Parliament’s best guess as to when prejudice can be expected to have arisen such that it is unfair to expose the defendant to the claim” (Cain paragraph 67). Disapplication of that primary limitation period (including as extended in the case of a person who was under 18 when the cause of action accrued) is “an exception to the general rule”, and “the burden of persuasion lies on the claimant” (CD paragraph 35), that being a “burden” resting on “the party who seeks to obtain the benefit of the remedy” (FZO paragraph 53). A sound starting point, in making a decision whether or not to disapply the limitation period is to recognise “the purpose of statutes of limitation”, being “designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why” (CD paragraphs 33-34). For the “reason for limitation provisions is to protect defendants from the injustice of having to meet stale claims” (Bryn Alyn paragraph 82). And a limitation period “represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated” (Taylor per McHugh J), so that “in addition to giving protection to defendants against facing stale claims there is also a more general social benefit” (CD paragraph 34).
Single trial of all the issues
    1. It has become the “usual practice in cases involving alleged sex abuse” for “the issues of the disapplication of the limitation period”, together with any substantive merits issues as to “liability and causation”, to be “tried together, avoiding the claimant having to give evidence twice if the action were to be allowed to proceed outside the limitation period”, meaning the Court has “heard full evidence” from the parties “on all issues of fact” before coming to decide whether the limitation period should be disapplied (FZO paragraph 51). That was the position at this trial.
(1) Where there is a single trial of all the issues, the Court must avoid a trap. The Court “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” (Nugent paragraph 21). The danger is that the Court would determine the substantive issues and, if they are determined in the claimant’s favour in circumstances where the Court is satisfied that there has been a fair hearing, this could ‘drive’ a decision to disapply the limitation period. As will be seen, disapplication does not follow wherever a fair trial is possible. It would be wrong in principle for disapplication to follow in every substantively meritorious claim in which a fair trial is still possible. The Court must consider “the effect of delay on the cogency of the evidence”. A late claim, which could succeed substantively with disapplication of the limitation period, might have stood to be defeated by evidence adduced by the defendant had it been brought earlier: that could be a paradigm case of relevant prejudice to the defendant, justifying a refusal to disapply the limitation period. So, it is “not sufficient for the court simply to hear the evidence of the claimant, and indeed any other evidence now available, and to decide the issue of limitation on the basis of it, without considering what evidence would or might have been available at an earlier stage” (Nugent paragraph 25). The Court should not proceed to a conclusion that the facts alleged in the claim are “established” without considering, in the section 33 context, the effect of the passage of time and whether the defendant has been prejudiced (Nugent paragraph 58). To proceed “from a finding… that the claimant should succeed on the merits to the conclusion that it would be equitable to disapply the limitation period… would be to overlook the possibility that, had the defendant been in a position to deploy evidence now lost to [it], the outcome might have been different” (CD paragraph 42; FZO paragraphs 54, 96).
(2) Provided that the Court does not fall into the trap, the Court is not required to suspend or ignore what it made of the evidence, when it considers disapplication. Take an example. A claimant might say there was delay ‘in appreciating that sexual acts were abuse’. It would be artificial for a Court to evaluate the strength of that reason for the purposes of disapplication (section 33(a)), putting to one side what the Court made of the claimant’s evidence, including as to whether the sexual acts took place (or the claimant genuinely believed they had taken place). The Court’s factual assessment can, properly, inform the Court’s reasoned, evaluative judgment on disapplication. Accordingly, it is “not realistic to shut one’s eyes to findings and conclusions reached following full trial”, it being “what is done with them in the context of the substance of the reasons for the limitation decision that matters” (FZO paragraph 96). It is appropriate for the Court “to adopt an overall assessment of the evidence” (FZO paragraph 60). That “overall assessment of the evidence … includes weighing up any adverse findings made against the claimant” (FZO paragraph 60), so that “when assessing the cogency of evidence in considering whether to disapply the limitation period, the judge must take into account findings adverse to the claimant” made “in the course of” the Court’s “fact-finding” (CD paragraph 43). If the Court does proceed in two stages – as by approaching disapplication on the basis of a ‘preliminary assessment’ of whether the cogency of evidence has been affected by the passage of time – it is appropriate to revisit that ‘preliminary assessment’ in the light of concrete later findings (CD paragraph 53). In a case in which the defendant relies, for the purposes of resisting disapplication of the limitation period, on the contention that – by reason of the passage of time – the claimant’s evidence is unreliable, incapable of belief, lacking in credibility, undermined by inconsistencies, or implausible (FZO paragraph 59), the Court may have to make an “assessment of… credibility for the purposes of the limitation question” (FZO paragraph 100); and in such a case the defendant thereby takes “the risk that a judge will have to assess that credibility, even for limitation purposes, in the light of the credibility (or lack of it) of the rival witness or witnesses” (FZO paragraph 102). In conducting such an exercise, the Court may identify matters relating to reliability, credibility, implausibility, inconsistency to which “if the limitation period is disapplied” the Court would then need to “have careful regard in assessing the… evidence” and determining the substantive merits of the case (FZO paragraph 65).
In all the circumstances, equitable (fair and just)
    1. In approaching the disapplication discretion, the Court must “have regard to all the circumstances of the case” (section 33(3)), it being the “object of the exercise … to consider the circumstances of individual cases” (Cain paragraph 79). The statutory question – whether it appears to the Court that it would be “equitable” to allow the action to proceed having regard to the degree of relevant prejudice to claimant and defendant (section 33(1)) – involves a balancing exercise: “the injustice to a claimant who may be deprived of [their] claim” is to be “balanced against the injustice to a defendant who may be called upon to defend [themselves] a long time after the event when important evidence may no longer be attainable” (Hoare HL paragraph 60). The “heart” of section 33 is the phrase “it would be equitable to allow the action to proceed”, where “equitable” means “fair and just” (Cain paragraph 63). The “basic question” is “whether it is fair and just in all the circumstances to expect the defendant to meet [the] claim on the merits, notwithstanding the delay in commencement” (Cain paragraph 73, endorsed at paragraph 83).
Length of the delay/ reasons for the delay
    1. As to the “length of … the delay on the part of the [claimant]” (section 33(3)(a)), although this is a reference to “the delay after the expiry of the primary limitation period” (Cain paragraph 74), it is “relevant to consider the whole of the period that has elapsed since the cause of action accrued” (CD paragraph 36, also paragraph 48). Consideration of “the length of, and the reasons for, the delay on the part of the [claimant]” (section 33(3)(a)) involves consideration of the specific circumstances and characteristics of the claimant and how they relate to the passage of time. The following points may be noted. (1) There may be multiple reasons or factors which are put forward as relevant to delay or to different periods within the overall delay (see eg. Nugent paragraphs 43-44). (2) The claimant may have been “for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered” (Hoare HL paragraph 49; Nugent paragraph 16). (3) The delay “may have arisen for so excusable a reason” as to make it fair and just that the action should proceed notwithstanding “some unfairness to the defendant due to the delay” (Cain paragraph 73). (4) It is important to consider “the medical evidence and opinion bearing upon the limitation issue” (FZO paragraph 107). (5) Illustrative examples of relevant considerations from the case-law include the following: (a) there may have been a lapse of time until a point at which the claimant “came to view that what had occurred to him… was abuse” (FZO paragraph 66); (b) it is relevant to ask whether and when the claimant “taking into account [their] psychological state in consequence of the injury, could reasonably have been expected to institute proceedings” (Hoare HL paragraph 44; Nugent paragraphs 10 and 16); (c) it can be relevant that there was a period in which the claimant “had a stormy life, with continuing problems” (Nugent paragraph 75), or the claimant “was in emotional turmoil” (Nugent paragraph 88), or where for “consistent and understandable reasons” the claimant “had got on with [their] life” (Nugent paragraph 95), or where, without having forgotten what happened to them, the claimant “just compartmentalised it and just put it to the back of [their] mind” (Nugent paragraph 87). (6) It can be relevant that, having made a complaint to the police it was “reasonable for [the claimant] to have waited until the conclusion of the criminal proceedings”, especially since any civil proceedings would have been “stayed” until the end of the criminal proceedings (FZO paragraph 75). (7) On the other hand, it may be that the claimant can fairly be described as having “put a cause of action onto the shelf with a view to taking it down again sometime later in the indeterminate future when [they] feel like using it” (GE paragraph 42). (8) Alongside the question of “the extent to which the [claimant] acted promptly and reasonably once [they] 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” (section 33(3)(e)), is the question of whether the claimant acted promptly once solicitors were engaged, or whether after that point there was “very tardy progress” which it is “impossible” to explain (GE paragraph 42, 68 and 80); and the question of when the “real nature of the claim” was notified to the defendant (CD paragraph 37) so that the defendant “can have had no inkling” of specific allegations as a ‘case… to be made against them” (CD paragraph 61).
Prejudice to the claimant/defendant
    1. The legally relevant way in which “the provisions of section 11… prejudice the [claimant]” for the purposes of section 33(1)(a) is that “the claimant had the right to pursue his cause of action which he has lost by the operation of section 11” (Cain paragraph 69), so that the prejudice is “the prejudice to the claimant of being denied a trial” (Cain paragraph 81). The legally relevant way in which a “decision of the court under this subsection would prejudice the defendant” for the purpose of section 31(1)(b) is not the loss of the limitation defence, or the economic consequences of having to pay damages in respect of a successful claim which the limitation period would have defeated. Rather it is the procedural prejudice in the defendant’s ability to defend the claim by reason of the passage of time which is the relevant prejudice. Thus “the prejudice to the defendant of losing a limitation defence is not the relevant prejudice to be addressed. The prejudice to be addressed is that which affects the defendant’s ability to defend” (Nugent paragraph 23). Thus, “having to pay the damages is not a relevant prejudice” nor is it “relevant … as one of the circumstances of the case” (Cain paragraph 70), nor is “the loss of the accrued limitation defence” (Cain paragraph 75), for section 33(1)(b) “does not direct the court to have regard to the prejudice the defendant would suffer from the very act of disapplication” (Cain paragraph 80). Considering “prejudice to the defendant” includes “considering what evidence might have been available to the defendant if the trial had taken place earlier or [the defendant] had learned of the claim earlier” (Nugent paragraph 25). As for “the degree to which” a decision to disapply the primary limitation period “would prejudice the defendant” (section 33(1)(b)), having regard to “the length of… the delay on the part of the [claimant]” and “the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the [claimant] 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” (section 33(3)(b)), the focus is on procedural prejudice: the effect on the defendant’s ability to defend (Bryn Alyn paragraph 81). “Delay of itself may not preclude disapplication of the limitation period. What is of importance is what prejudice the defendant has suffered by the delay”, which is why it has been said that: “The issue on which the court must concentrate is whether the [defendant] can show that, in defending the action, there will be the real possibility of significant prejudice” (CD paragraph 35). In considering prejudice to the defendant and the length of the delay, what “should make the difference” is “whether the defendant has suffered any evidential or other forensic prejudice” (Cain paragraph 57). What matters is “the prejudice to the defendant in the conduct of the action” which includes the “opportunity to investigate the claim” and the relevant “circumstances” (Cain paragraph 61). The relevant right, on the part of the defendant, is “the right to a fair opportunity to defend [itself] against the claim” (Cain paragraph 64). A principle which underpins limitation periods is that it is “not fair and just to impose liability on a defendant who had not had a proper opportunity to investigate the allegations against [it] and to assemble the evidence necessary to defend [itself]” (Cain paragraph 64). A defendant “only deserves to have [its] obligation [to pay damages] removed if the passage of time has significantly diminished [its] opportunity to defend [itself] (on liability and/or quantum)”, so that disapplication is “only prejudicial to [the defendant] if [its] right to a fair opportunity to defend [itself] has been compromised” (Cain paragraph 69). Thus, it is relevant to ask whether the delay in commencing the proceedings has “caused prejudice to the defendant in its defence”, which prejudice serves to “outweigh the prejudice to the claimant of being denied a trial at all” (Cain paragraph 81).
Whether a fair trial is possible; and whether it is fair for a trial to take place
    1. One relevant question is “whether a fair trial is still possible” (Hoare HL paragraph 52): focusing on “the possibility of having a fair trial” (Hoare HL paragraph 85) and “the prospects of a fair trial” (Hoare HL paragraph 60). However, although “undoubtedly a very important question”, “the possibility of a fair trial” is “a necessary but not a sufficient condition for the disapplication of the limitation period” (GE paragraph 78). It is relevant to ask, not only whether a fair trial is possible, but also: whether the defendant’s ability to defend the claim is prejudiced due to the lapse of time since the events giving rise to the cause of action (Hoare HL paragraphs 50 to 51); what is the nature and what are the implications of the delay (FZO paragraph 111); whether the defendant is disadvantaged by the passage of time (CD paragraph 69). Thus, it is helpful to ask, not only whether a fair trial can be conducted, but “whether it is fair in all the circumstances for the trial to take place” (GE paragraphs 59-60).
Nature of the issues
    1. It is important to have close regard to the nature of the issues needing to be determined at the trial. In Nugent (paragraph 96) it was not fair to disapply the limitation period “to allow the claimant to continue to advance allegations of negligence”, but it was fair to disapply the limitation period to allow a trial of allegations of sexual abuse, including consideration of issues relevant to vicarious liability. Thus it was significant for the disapplication discretion that claims came to involve “altogether narrower factual disputes than hitherto” (Hoare HL paragraph 85). At previous stages in the development of the law, as to both vicarious liability and limitation periods, claims relating to sexual abuse were framed as being concerned with ‘systemic’ issues and failures to protect. It was “previously… necessary for the evidence to cover the whole system being operated… over a long period and for the court to consider whether there was a relevant breach of duty”, as distinct from claiming that alleged abuse occurred and that the defendant was vicariously responsible for it (together with any issues as to causation and quantum): Nugent paragraph 14 (also paragraph 45). Once the true nature of the issues is identified, the court is able to focus on the evidential implications (Nugent paragraph 15). Thus, it may be that the “issues are narrow and well capable of resolution”, with “little loss of cogency” (Nugent paragraph 80). Facts relating to whether there was a sexual relationship, and if so its nature, may be “largely known only to the two people concerned”, such that there may be “nothing to suggest realistically that there [is] evidence missing that could have affected the outcome of this part of the case” (FZO paragraph 99).
Witnesses, Documents, Recollections
    1. In considering prejudice to the defendant and the extent to which, having regard to the delay, evidence adduced is likely to be less cogent, it is relevant to ask: whether there is any loss of any individual as a witness; any loss of any document (including materials which documented an earlier evidence-taking proceeding); any loss of ability of witnesses to recollect details of material events; and whether it is to be supposed that the memories of key individuals would have grown dim about the central allegations, albeit that recollections of subsidiary witnesses might be affected by the passage of time as to the surrounding penumbra of the case (GE paragraph 43). It is relevant to consider: whether there is any missing evidence, whether it is likely that any further such evidence existed at any earlier time, whether the defendant has sought to find any such evidence (FZO paragraph 70); whether any significant concrete example has been given of any missing witness or evidence (FZO paragraph 114); whether investigative attempts have been undermined by the passage of time (FZO paragraph 115); whether it has been possible for the defendant to investigate allegations with a fair opportunity to do so (Hoare HL paragraph 86); whether the delay has had consequences for the defendant’s ability to investigate and defend the claim (CD paragraph 38); the impact of the delay on the cogency of expert evidence, and whether the task of the experts has been made more difficult, including whether expert evidence has been undermined by documents which are missing (FZO paragraphs 70-72, 116 to 118).
My conclusion on disapplication
    1. In my judgment, Mr Levinson for Abigail has discharged the burden of showing that – having regard to all the circumstances of the present case and in particular the matters set out in section 33(3)(a) to (f) of the 1980 Act – it would be fair and just, and it would be equitable (pursuant to section 33(1)) to allow the action to proceed to be determined on its substantive factual and legal merits. That is so, having regard to the degree to which: on the one hand, the operation of the primary limitation period under section 11 (including its extension to her 21st birthday by virtue of section 28) relevantly prejudices Abigail; and, on the other hand, disapplication pursuant to section 33 would relevantly prejudice CSM. In my judgment, the balance of prejudice and justice – informed by all the circumstances and in particular the length of the delay, the reasons for the delay, and the extent to which having regard to the delay the evidence adduced by the parties is likely to be less cogent than if the action had been brought within the primary limitation period (with or without the extension applicable to Abigail having been a child) – comes down decisively in favour of Abigail. I will now explain the key points that have led me to this assessment, having regard to the discussion of the legislation and the key points which I have set out already (and do not repeat) arising from the line of authorities.
My reasons
    1. First, I recognise the primary limitation period identified by Parliament and applicable to the present case. I recognise the judgment made by Parliament, approximating 3 years from the accrual of the cause of action to a position of presumptive prejudice for a defendant in having to defend such a claim. I recognise the judgment made by Parliament, extending the primary limitation period by reference to the time during which a claimant was a child, with the 3-year period running between their 18th birthday and their 21st birthday. I recognise the legitimate objectives and public interest considerations embodied and reflected in those statutory provisions. However, I also recognise that Parliament entrusted to the judgment and appreciation of the Court – guided by the provisions of section 33 and the relevant case-law – the burden of considering whether disapplication is nevertheless equitable (fair and just) in all the circumstances. Parliament recognised that there would be cases in which it would be equitable – fair and just – to disapply the primary limitation period and allow the claim to proceed to determination on its factual and legal merits. In my judgment, this is one of those cases.
    1. Secondly, I recognise that the length of the delay in the present case is rightly characterised by Mr Ford QC as a “very, very long period” of delay. The alleged incidents took place in 1996-97. That is 20/21 years earlier than the limitation ‘freeze’. It means the trial has been concerned with events which took place 24/25 years earlier. The limitation ‘freeze’ came 15 years and 4 months after the expiry of the extended limitation period at the end of March 2002. 15 years is a full 5 times the 3-year period which constitutes the primary limitation period for an adult in relation to the present kind of claim. The potential prejudice to a defendant in having to defend on its factual and legal merits, a claim concerning events 20/21 years before it is to be treated as having been brought, where more than 15 years have elapsed since the extended deadline under which Abigail was entitled to bring the claim, is a potential prejudice which is significant and serious. The length of the delay brings into sharp focus the question whether disapplication can properly be regarded as equitable (fair and just). It brings into sharp focus the question of whether Abigail is able to put forward any convincing reason for such a long delay. It brings into sharp focus whether the delay is such as to give rise to real and significant relevant prejudice to CSM.
    1. Thirdly, as to the reasons for the delay, while I cannot accept that the multiple reasons which have been put forward by and on behalf of Abigail (section 33(3)(a)) stand as cogent and compelling reasons for the entirety of – and for each period within – the very long period of delay, there is nevertheless some real force in several of the points made. There is no question, once Abigail had her 18th birthday (March 1999), of any lack of capacity then or at any subsequent stage. The experts (Dr Freedman and Professor Maden) agree that Abigail “has never lacked the mental capacity to make a complaint or to instruct a solicitor”. Further, Abigail has been under no psychiatric or psychological disability which would have prevented her from complaining about the alleged sexual abuse. I accept Professor Maden’s assessment that the filing of the complaint to the foreign domestic police in December 2007 when Abigail was aged 26 demonstrates that at that stage there was “no psychiatric or psychological disability that would have prevented her from complaining about other abuse”: Abigail had, and could exercise, “a free choice”. It is likely that Abigail would have continued to do nothing about making any complaint or claim in relation to Mr Li, had there not been the catalyst of the events of 2013. Having said that, there is, in my judgment some real force in these points:
(1) Until she was about 25 (around 2006): (i) Abigail saw Mr Li’s sexual conduct towards her in 1996/97 as Mr Li having “taken advantage of me”; and (ii) although she did not “forget” it, she did ‘push it to the back of her mind’. Abigail, convincingly and consistently, described how she had seen what happened as Mr Li “taking advantage of me”; she did not see it as “abuse”; she did not see it as “rape”. I accept, to use Dr Freedman’s phrase, that Abigail did not “understand until age 25 that what happened to her was sexual abuse”. As to whether she had “forgotten” (or “not remembered”), Mr Ford QC submitted that Abigail’s evidence was “confused”. Abigail spoke of periods in which she had little more than “flashbacks”. She used the phrase “suppression, repression or dissociation”. I find, as Dr Freedman characterised it, that Abigail “wanted to block out and forget what had happened to her”. I accept, as an apt description, what Professor Maden says about a person who does not “truly forget” acts but has acted to “push those memories to the back of the mind and avoid thinking about them”. Abigail could have reported Mr Li’s conduct to CSM at the time (in 1997), rather as 21-year-old Candice reported Mr Li to RNCM (in 2000). I am satisfied that Abigail had a period of turmoil 1997-2001 (ages 16-21) in which she ‘compartmentalised’: she was trying, with limited success, to reintegrate into the education system in her country of origin after 4 years (1997-2001) at specialist music boarding schools in England, with her violin playing dreams in tatters, her parents’ marriage over, struggling with an eating disorder, and experimenting with drugs. I am satisfied that Abigail then had another period of ‘compartmentalising’ 2001-2005 (ages 21-25), determinedly focused on the monumental task of trying to resurrect a violin-playing career, after five crucial formative years away, with the teacher who represented her ‘best shot’, who knew her skill and potential better than anyone. Abigail was (in 2007) able to report to the foreign domestic police alleged sexual abuse by Isabelle and Isabelle’s friends in 1995 (when aged 14), and did not report sexual abuse by Mr Li from 1996/97 (aged 15/16). That was an exercise of “free choice”, but it involved another act of ‘compartmentalisation’. It ended badly, with Dr Sankl’s report (November 2008) doubting her ability (aged 27) to provide information and testify. Understandably, that hit her hard: she saw it as an unfair “character assassination”.
(2) When in early 2013 (aged 31) Abigail reported what had happened to her to GMP, the catalyst for doing so was that she had learned that there was an investigation into allegations of teacher sexual abuse at CSM, which complaints were being investigated. It was this knowledge which caused Abigail to step forward at that time and tell her own story, believing that she would be taken seriously by the authorities. After that, Abigail placed her trust in the criminal process. There was no complaint against CSM directly. But CSM was aware – throughout GMP’s investigation – of the substance of Abigail’s allegations regarding Mr Li. Abigail could have gone to GMP and spoken to them about Mr Li without that catalyst: as Abigail had done in going to the foreign domestic police about Isabelle; and as Frances Andradi had done with GMP about Mr Brewer. Having said that, it is in my judgment important, and right in principle, to recognise the following truth. There is a legitimacy in an abuse survivor experiencing, as an encouraging and reassuring catalyst, knowledge of another similar investigation. That may encourage an individual to step forward and tell their story to the authorities, as to something that happened many years ago, with added confidence that they will be listened to, even though it happened many years ago. It is also in my judgment important, and right in principle, to recognise that there is a legitimacy in trusting the criminal process and not pursuing parallel civil action, against an abuser or their employer: that was the position in this case in the period 2013-2016 (aged 31-34). Once the CPS dropped the prosecution of Mr Li (March 2016) there was no significant lack of promptness or unexplained delay. The prosecution of Mr Li was discontinued on the eve of Mr Li’s Crown court trial (April 2016), by reference to a document which long had been available to GMP (the Sankl Report) and which had been put by them to Abigail 18 months earlier (September 2014). When the prosecution was dropped, Abigail understandably needed some recovery time. After what she calls a “break”, she engaged solicitors. Together, they explored the prospect of overturning the CPS decision, and then civil proceedings against CSM were the subject of the solicitors’ letter before claim (4 July 2017) and the limitation ‘freeze’ (agreed in August 2017).
In considering these points it is important never to lose sight of the overall lapse of time and the overall delay. It is also important to recognise that, so far as concerns Abigail’s “reasons for the delay” (section 33(3)(a)): (1) there was a period 2006-2013 (a full 7 years) from graduating from RNCM and making the complaint to GMP; (2) within that period was the period 2009-2013 (a full 4 years) from discontinuance of the foreign domestic police proceedings to making the complaint to GMP; (3) these periods would have been even longer but for the catalyst of the external motivation in 2013. I do not accept that this is a case which can properly and fairly be characterised as an individual ‘choosing to put on the shelf a cause of action with a view to taking it back down off the shelf and deploying it when they feel like doing so’. But there is, in my judgment, a substantial period of delay which is not explained by any reason which could constitute what has been described (in Cain at paragraph 73) as “so excusable a reason” as could make it fair and just for the action to proceed, looking at the matter in the round and on balance, notwithstanding substantial “unfairness to the defendant due to the delay”. The critical question is whether there is substantial, relevant prejudice to CSM.
    1. Fourthly, so far as concerns unfairness or prejudice to CSM due to the delay, my assessment is as follows.
(1) I remind myself of the following basic features of the passage of time: the passage of time is bound to have affected the memories of witnesses; that a person describing events long ago will be less able to remember exactly when they happened, the order in which they happened, or the details of what happened than they would if the events had occurred more recently; that a person’s memory may play tricks on them, leading them genuinely to believe that something happened long ago when it did not; that the passage of time may put CSM at a disadvantage in Mr Li or another witness not now being able to remember details which would have helped CSM’s case, in CSM not now being able to call witnesses who could have helped its case, and in CSM not now being able to produce documents which could have helped its defence.
(2) The issues in the trial are narrow. The Court has to decide the factual questions of whether the essential allegations of sexual acts by Mr Li took place in 1996 and 1997. The Court also has to decide whether and to what extent, if those acts did take place, CSM is vicariously liable. There is no issue of consent. There is no remaining disputed issue of causation. Quantum is agreed on the basis of intercourse having taken place and CSM being vicariously liable for it. Resolving quantum on the basis of the Court finding only less serious events took place or attract vicarious liability will not present any real hurdle: the parties envisage brief written submissions.
(3) Whether what is alleged by Abigail to have happened in 1996/97, between Abigail and Mr Li, in the practice room at CSM, in Mr Li’s car and in his flat engages the evidence of Abigail and Mr Li. They are both available to give oral evidence and be cross-examined at the trial. They both claim a clear recollection of whether what is alleged took place. It is true that memories will have faded over time, on questions of surrounding detail. But I do not accept that there has been or would have been any relevant or material fading in recollection on the questions at the heart of this case. Did Mr Li kiss Abigail in his teaching room at CSM? Did Mr Li perform an act of oral sex on Abigail in his car outside his flat at Salford Quays after returning from a concert in the spring of 1997? Did Mr Li sexually penetrate Abigail in her bed later that night in his flat? Did they continue to have intercourse and oral sex until the summer of 1997?
(4) I can see no procedural prejudice related to the resolution of the vicarious liability issue. The case on behalf of Abigail has been put squarely on the basis that she was present at Mr Li’s flat during stays in which he was acting as her guardian and host. There is no disputed issue as to whether CSM was involved in Abigail’s parents choosing Mr Li as guardian: it is accepted that CSM was not. There is no disputed issue as to whether any relevant event occurred at any time at which Mr Li had ‘signed out’ Abigail from CSM other than hosting her as guardian: the case is squarely put on the basis that any sexual abuse in Mr Li’s flat or car took place when he was hosting Abigail as her guardian. There is no question of fact relating to vicarious liability on which any procedural prejudice from the delay can, in my judgment, have arisen.
(5) Mr Ford QC for CSM has rightly avoided exaggerating or overstating CSM’s position on the limitation issue. It is not said that there is any witness material to the issues who would have been available to CSM at an earlier trial of the substantive factual and legal merits, but is not now available. It is not said that any investigative step has been identified by CSM as one which it could have undertaken, or could more fruitfully have undertaken, had the proceedings been commenced at an earlier stage compared with the timing when the proceedings were in fact commenced. It is not said there is any documentation material to the resolution of the issues which, through passage of time, has or will have become unavailable or inaccessible.
(6) Albeit not a sufficient basis for disapplication – though it is a necessary one – I am quite satisfied that a fair trial is possible. Further, there is, in my judgment, no unfairness to CSM in the trial taking place, and the substantive factual and legal issues being determined on their merits, now compared with at any earlier stage. I have identified no relevant prejudice to CSM by reason of the passage of time. CSM is able to put forward Mr Li as its principal witness, together with the other witnesses (whose statements were read, because there was no need for any cross-examination). CSM is able through Mr Ford QC to subject Abigail’s oral evidence to a skilful and searching cross examination. Further, the Court has the advantage of a solid platform of contemporaneous material elicited by GMP during a sustained period of investigation. It includes interviews with Abigail and with Mr Li, of which the full interview transcripts remain available and are before the Court. It also includes other materials such as records of interviews and statements. It is not the case that the Court has before it a full set of all the investigative materials held by GMP. But, bearing that fact in mind, it is not the case that CSM has been able to point to any gap in the police documentation which is material to the resolution of the issues at this trial. Although the Experts agree that “it would have been helpful to see [Abigail] nearer to the time of the alleged abuse” and “it would be helpful to see full medical records dealing with the mental health problems she reports in her childhood and adolescence” there is, in my judgment, no basis on which it can be said that the experts’ tasks have been made more difficult in relation to any issue which the Court has to determine at this trial. As Mr Levinson rightly points out, it has to be borne in mind that the Court is not deciding questions relating to physical or mental health conditions, or causation, and that quantum has been agreed (or is accepted to be readily capable of resolution).
(7) This evaluation of the absence of relevant prejudice to CSM by reason of the passage of time is one which I have revisited in light of my deliberations as to the evidence, my evaluation of the evidence, and the findings of fact which I have needed to make and have made in this judgment. I regard that as an important and valuable cross-check. In my judgment the only prejudice to CSM would be constituted by the inability to be able to rely on the ‘accrued limitation period’, and thus avoid the risk of liability and adverse findings. The same is true if the prejudice is analysed from the perspective of Mr Li, CSM’s employee at the relevant time. But that is not relevant prejudice for the purposes of deciding the issue of disapplication.
(8) I do not accept Mr Ford QC’s submission (one also made in FZO) that Abigail’s evidence is so vague, uncertain, unclear and unreliable – and that in all these respects its cogency has been reduced by the lapse of time – that it would not be equitable to disapply the limitation period having regard to the balance of prejudice. I do not accept that Abigail’s evidence is materially vague or uncertain or unclear or unreliable, nor that it has these characteristics by reason of the lapse of time. I shall return to what I made of Abigail’s evidence when I analyse the Factual Issue.
  1. Fifthly, I look at the position overall and in the light of what I have said about the line of authorities and the circumstances of this case. The prejudice to Abigail is in the loss of a determination of her claims on their factual and legal merits. That is a substantial prejudice. I make clear that I do not consider it appropriate, at least in the present case, to give that prejudice any added weight on the basis of what the claim is said to mean to Abigail in human terms (for example, Dr Freedman records Abigail’s description of a life which “has come to a standstill”). Having regard to all the features of the case, in my judgment, the balance of prejudice (section 33(1)(a) and (b)) comes down decisively in favour of the conclusion that it would be equitable to allow the action to proceed, having regard to all the circumstances of the case including the length of delay, the reasons for the delay and the extent to which the evidence adduced by the parties is less cogent than if the action had been brought within the section 11 three-year time-limit, with or without the section 28 extension (to Abigail’s 21st birthday). I am satisfied that it is appropriate for the Court to exercise the power which Parliament conferred on it in section 33.