UK: Historical Abuse: Balancing The Scales Under Section 33

Last Updated: 17 December 2008
Article by Jerome Curran and Christian Webb-Jenkins


On 10 December 2008 Mr Justice Eady in the High Court gave judgment in TCD v. Harrow, a case which will be of interest to those who deal with historical abuse claims. It is one of the first cases in which the court has considered Section 33 since the decision of the House of Lords in Hoare which slightly modified the factors to be taken into account under the section. The decision is more likely to be warmly welcomed by those involved in the defence of this category of case rather than by those who represent claimants, but there is significance in it for both camps.

The claim

The claimant, aged 41, sought compensation from three local authorities, in whose districts she had lived for different periods of her childhood, for sexual abuse perpetrated upon her by X, her adoptive father. X abused her between 1975 and 1981 when she was aged eight to 14. Limitation was raised and despite opposition from the claimant, it was ordered to be tried as a preliminary issue. The two questions for Eady J were:

  1. Did the claimant know more than three years before she issued proceedings that her injury was attributable to the acts/omissions of the councils?
  2. Even if she did, should the court nevertheless allow her claim to proceed out of time?


The Judge observed that 'knowledge' did not require the claimant to know the exact role of the local authorities in relation to child protection nor to understand the law of negligence, but that she must be shown to have had knowledge of the factual allegations underlying her claim. He found that when she attained her majority in 1985 she knew that:

  • she had been abused from the age of eight
  • X had been convicted of an indecent assault on her in 1977
  • there were family rumours that X had previously been convicted of a sexual offence upon someone else
  • she had not been removed from X's care until 1981
  • at X's trial for rape in 1982 the Judge had criticised at least one council
  • she had been suffering for a long time psychological trauma as a result of the abuse
  • she had lived at various addresses and could easily have found out which were the relevant councils

He concluded that the claimant was fixed with knowledge from her 18th birthday: she knew enough to make it reasonable for her to begin to investigate whether she had a case against any of the councils.

Section 33 discretion

The claim originally made against Harrow was that they had failed to inform the court which made the adoption order in 1972 that X had previously been convicted of offences of indecent assault. However, tenacious inquiries by the defendant unearthed in 2007 the court's file and this showed that it had been informed. The claimant then shifted her stance and alleged that Harrow ought to have positively opposed the adoption. The Judge astutely observed that this sequence of events illustrated clearly the dangers of leaping to conclusions on the basis of incomplete records.

Holding that the paramount consideration was the need to have a fair trial, the Judge noted that some important documents were missing, e.g. a report from Harrow to the court and Harrow's 'running log', and that a search for witnesses who could offer any cogent recollection of the events going back some 36 years had been fruitless. He found that there was serious prejudice to the defendant.

Turning to the claimant's reasons for the delay the Judge declined to accept that her knowledge only dated from the time when she obtained copies of her records. Secondly, the fact that she had not felt able to confront the abuse, whilst understandable, was not a complete answer but had to be looked at against the background. Thirdly, as to the claimant's explanation that she had delayed bringing proceedings until her children were old enough, whilst not criticising her, the Judge held that it was a matter to be assessed not in isolation but against the prejudice caused to the defendant by the delay.

The Judge declined to exercise his discretion in favour of the claimant. He said:

"...the court should never lose sight of the public policy considerations underlying the legislative regime governing limitation periods. Public authorities, as well as commercial entities and individuals, should not remain exposed indefinitely to the threat of litigation based upon historic allegations. Fairness requires a balancing of all relevant factors and their interests have to be taken into account. There is a public interest in certainty and finality and such considerations must not be lightly discounted, especially not on the basis of sympathy for an individual litigant..."


This is an admirably balanced and fair approach. It recognises the difficulty of the position in which local authorities can find themselves. The decision is helpful for those who have to defend this category of case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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