Catholic Child Welfare Society (Diocese of Middlesbrough) and Others v CD [2018] EWCA Civ 2342
The Court of Appeal has ruled that a judge should not have exercised his discretion under the Limitation Act 1980 when allowing a claim in relation to historic sexual abuse to proceed.
The claim was advanced following an allegation of rape against a member of staff made by the Claimant. The alleged rape had taken place 24 years earlier, yet the allegation was raised eight years after the Claimant had been involved in group proceedings which had alleged physical abuse only by staff.
This decision ties into other decisions on limitation, RE v GE and F & S v TH. Collectively these cases provide a useful checklist to insurers and defendants when reviewing new cases to assist in determining whether a limitation defence ought to be raised or pleaded.
Background
The Claimant's initial claim in 2006, as part of a group action, was based upon physically abusive behaviour by staff. There we no allegations of sexual abuse by the Claimant at that time. In 2014 he then claimed to have been raped by a member of staff when he was 12. In 2015, the member of staff was convicted of serious sexual offences against other pupils.
In the first instance decision, the trial judge exercised his discretion under section 33 of the Limitation Act and disapplied the relevant limitation period under s.11 in respect of the rape claim.
The Claimant was awarded damages in the sum of £14,000.00.
The Defendants appealed the decision to disapply the limitation period.
Outcome
The Court of Appeal acknowledged that the judge's ability to disapply the relevant limitation period was discretionary. However, it concluded that the trial judge was incorrect in this instance to have disapplied the limitation period.
Giving the lead judgment, Lewison LJ allowed the Defendants' appeal, reversing the judge's discretion and dismissing the Claimant's claim.
In considering the exercise of the discretion, Lewison LJ highlighted several issues:
- CD had not revealed the nature of the allegation until 2014, and "even then in the tersest of terms". He considered the complaint as it eventually emerged was "thoroughly stale", there having been a delay of 24 years, despite CD having had the benefit of legal advice since 2005.
- CD's complaint was uncorroborated, contradicted previous statements and contemporaneous documentation. The passage of time was acknowledged in the trial judge's finding to have affected "the cogency of CD's evidence".
- In the period since July 1990 (when the cause of action accrued), the Defendants had lost touch with relevant witnesses who may have been able to corroborate the contemporaneous records.
Concluding, Lewison LJ stated that in his view the "defendants were exposed to the real possibility of significant prejudice in their ability to defend this claim so long after the event..." once again highlighting the Defendant's inability by that time to call relevant witnesses.
What can we learn?
- Defendants should always look undertake a detailed review of the factual basis and the history of the claim. This will enable them to determine whether or not they will be able to effectively defend the claim along with the likelihood of a fair trial.
- Whilst this matter turned on its own facts, it reiterates earlier case law that the reasons for a claimant's delay are central to the test in disapplying the Limitation Act. The case clarifies that the delay is the actual delay between the date the alleged sexual assault happened and when the defendants were first informed of a claimant's claim.
- A defendant's ability to rebut inconsistent evidence from a claimant, with further witness evidence of their own, is fundamental to ensuring there is no prejudice. This is particularly important where those further witnesses may be able to provide evidence consistent with contemporaneous documentation.
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.
