Limitation in abuse claims: it's not off limits

Hill Dickinson LLP has successfully defended a claim at trial involving alleged historical abuse by a now deceased Roman Catholic priest against two brothers in the 1970s and 1980s. The High Court has now handed down its judgment in the case in which it refused to exercise its discretion under the Limitation Act 1980 to allow the claims to proceed.  Ian Carroll, senior associate in the abuse and social care team at Hill Dickinson, considers the decision and likely impact in other cases.

Background

The claimants alleged that they were the victims of serious sexual abuse by a now deceased Roman Catholic priest (M) at various times between 1979 and 1986.  In 2012 the claimants commenced civil claims for compensation alleging the defendant organisation to be vicariously liable for M’s assaults. As well as claiming general damages for the assaults themselves, the claimants also made substantial claims for loss of earnings totalling over £800,000. 

It was accepted by the defendants that they would be vicariously liable for any assaults the claimants proved had been committed. However, M had died in 2004. Further, apart from the claimants, there had been no record of any complaints against him, either before or since his death.  Accordingly, it was argued that M’s death and the length of delay had rendered the defendants unable to carry out a meaningful investigation so that a fair trial was no longer possible. A limitation defence was raised on the basis that the claims were statute barred and the court should not exercise its unfettered discretion to allow the claims to proceed.

The trial took place before HHJ Langstaff in February 2016 in the High Court in Manchester.

Judgment

Dismissing the claims, HHJ Langstaff found that the available evidence was insufficient for either claimant to have discharged the burden of proof to the requisite standard that the abuse had occurred as alleged. Further, even if the claimants had discharged the burden of proof, the Judge considered that such were the difficulties caused by their delay that he would have refused to exercise his discretion to permit the claims to continue.

On the facts, the second claimant made a complaint to the defendants and the police in 1995. The first claimant did not make any complaint until 2006.  The Judge commented that their delay after having known of the abuse and being able to talk freely about it exceeded the three year primary limitation period in both claims but no clear explanation had been advanced to justify the delay. The Judge stated that “a passage of time beyond the primary limit which begins after a long delay which might be forgiven is not rendered more easily excusable because of the water already under the bridge: to the contrary, it makes taking quick action all the more incumbent on the would-be claimant.”

The Judge also found both claimants to be unreliable witnesses, meaning that the delay had affected the cogency of their evidence. In particular, both claimants advanced “grossly inflated” claims for loss of earnings with little supporting evidence, which gave the Judge no confidence in the honesty and reliability of the claims as a whole. The Judge also rejected the psychiatrists’ opinion that the alleged abuse had caused chronic PTSD.  In particular, the first claimant’s personal history included being wrongly convicted and imprisoned for the murder of his partner.  The Judge considered it counter-intuitive to think that a person who was framed for a murder he did not commit, spending over two years in prison as a consequence of which he lost the custody of his young son (in respect of which he admitted in court that he had suffered flashbacks and intrusive thoughts) was actually suffering from chronic PTSD caused almost entirely by the alleged abuse.

It followed that although it was possible that one or both of the claimants had been abused by M, a fair trial of these allegations was no longer possible. Further, the Judge found that it would have been impossible to make any award for the financial losses claimed as well as assessing general damages. This would have involved “extracting the uncertain contribution made by any such abuse as might have occurred from other factors operating independently upon the mental state of the claimants”. Such were the problems of this assessment and “disentangling a tortious cause from one that involves no breach of duty” it meant that a fair trial of those issues was no longer possible.

Conclusion

This judgment demonstrates that limitation still remains a valid defence in appropriate cases.  It shows that the courts are prepared to attach proper weight to the principles underlying limitation in these types of cases. This follows on from the Court of Appeal’s recent decision in RE-v-GE [2015] EWCA Civ 287, in which the Court refused to exercise its discretion to allow the claim to proceed where the claimant had delayed over four years from when she had been advised she could pursue a claim, despite the alleged abuser still being alive and available to give evidence.

The death of M, long before proceedings were issued and where no other complaints had been made against him, was still an important factor for the purposes of limitation and is a factor often present in many other claims. The effect of this was best evidenced by the fact the defendants were simply unable to cross-examine the claimants directly on the account of abuse which they gave. The allegations had never been put to M and there was no way of the defendants knowing whether the abuse had occurred. Nor did the defendants have any basis to challenge directly the truth of the claimants’ accounts of abuse. To have done so would also have served little purpose other than to run the risk of aggravating any injury which had already been caused. Organisations should therefore consider all relevant factors when considering a limitation defence and defendants should not feel constrained raising this defence where it is appropriate to do so.