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AB v Nugent Care Society: GR v Wirral Metropolitan Borough Council [2009] EWCA Civ 827

Appeals and cross-appeals concerning application of ss 14 & 33 of the Limitation Act in two separate actions where there are allegations of sexual abuse at children’s homes.

In the first case, the defendant was a Roman Catholic organisation running homes and in the second case the defendant was a local authority. Both were being sued for negligence arising out of the claims of sexual abuse, which had allegedly occurred in the 1970’s.

In this judgment, Lord Clarke, reviews the operation of ss14 and 33 of the Limitation Act 1980 in the light of the recent Lords decision in A v Hoare. He starts by considering the relevant principles and case law, distinguishing some of the facts in these appeals from the facts of A v Hoare and setting out in para's 20-27 some principles on how judges should exercise their discretion in the future. He then goes on to review the facts of each appeal. In the first case, he agrees with the trial judge’s exercise of discretion, allowing two of the three claimants to pursue their claims. In the second case, he also found that the judge had been correct to find that the claimants had knowledge of their injuries at an earlier date so the cases fell into the discretion offered under s33 rather than that under s14.

Neutral Citation Number: [2009] EWCA Civ 827
Case Nos: B3/2009/0302 and 0220
The Hon Mr Justice Irwin
1997 A No 03700/3710 and 801
His Honour Judge Main QC
MA3 13631
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/07/2009
Before :

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Between :

AB and Others (JPM, JB and DVB) (Claimants)

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and between

GR (Claimant)

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Richard Maxwell QC and Aswini Weereratne (instructed by Abney Garsden McDonald Solicitors) for the Claimants JPM, JB and DVB

Justin Levinson (instructed by Pannone for the Claimant GR)

Edward Faulks QC and Nicholas Fewtrell (instructed by Hill Dickinson LLP) for both Defendants

Hearing dates: 5, 6 & 7 May 2009 
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This is the judgment of the court, to which each member has contributed.

1. These appeals raise questions as to the correct approach to the application of section 33 of the Limitation Act 1980 in the light of the decision of the House of Lords in A v Hoare [2008] UKHL 6, [2008] 1 AC 844.  Each appeal arises out of allegations of historic sexual abuse at a children’s home or homes.  We heard the appeals in two cases together.

2. In the appeals in AB and Others v Nugent Care Society (‘the Nugent Care Society case’) there are three relevant claimants, namely JPM, JB and DVB.  They were all at St Aidan’s children’s home in Widnes at various times.  JPM was there between May 1967 and November 1968, JB from August 1971 to November 1972 and DVB from May to August 1979 and from October 1979 to March 1980.  The defendant is a Roman Catholic organisation which, either by itself or its predecessors in title, owned and managed the homes.  The appeal arises in a group action in which there are a total of over 50 claimants, some of whom were at St Aidan’s and some of whom were at a similar institution called St Vincent’s in Formby.  Both had varied legal status over the years, moving from being approved schools for the purposes of the Criminal Justice Act 1948 to become Community Homes with Education under the Children and Young Persons Act 1969.  As Irwin J put it at [5] of his judgment, their function remained very similar, namely receiving boys who got into trouble with the law or had significant family problems or both.  A significant number of former members of both institutions have been convicted of sexual abuse of children in their care.  St Aidan’s closed in 1982 and St Vincent’s in 1989. 

3. In the appeals in GR v Wirral Metropolitan Borough Council (‘the Wirral case’) the claim arises out of alleged sexual abuse in the 1970s in one of the defendant authority’s care homes.  These appeals too are from a determination of a preliminary issue.  It is convenient to consider the appeals separately, although some of the relevant principles apply to both.

The Limitation Act 1980
4. It is the defendant’s case in the Nugent Care Society case that the relevant limitation statute is the Limitation Act 1939 but it is common ground that there is no distinction between the relevant provisions of that Act and the Limitation Act 1980 (‘the 1980 Act’).  So the argument has proceeded upon that assumption and we will do the same.

5. By section 2 of the 1980 Act the limitation period for an action founded on tort, which of course includes trespass to the person, is six years.  By section 11(1), (3) and (4), an action “for negligence, nuisance or breach of duty” which includes a claim for damages in respect of personal injuries shall not be brought after a period of three years from the date on which the cause of action accrued or from “the date of knowledge (if later) of the person injured”.  By section 28, where the claimant was under the age of 18 when any cause of action first occurred, the respective limitation periods start to run upon the attainment of majority.  All the claimants in these appeals were under 18 when the alleged abuse occurred.

6. The critical provisions for present purposes are sections 14 and 33, which provide, so far as relevant, as follows:

“14(1) Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -

(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3)  For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire –

(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and where appropriate, to act on) that advice.

33(1) 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 plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

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

(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 …;
(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 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.”

The relevant principles
7. Sections 11, 14 and 33 of the 1980 Act were the subject of the decision of the House of Lords in A v Hoare (and other conjoined appeals), which departed from an earlier decision of the House in Stubbings v Webb [1993] AC 851.  In the latter case it had been held that a claim for damages for trespass to the person was not a claim “for negligence, nuisance or breach of duty” and that it followed that section 11 did not apply to it.  It also followed that the limitation period was six years and that there was no discretion to extend the period under section 33.  It was held in A v Hoare that such a claim was a claim for damages for breach of duty and that the period was three years but was subject to the court’s discretion to extend the period under section 33.  That decision, together with an earlier decision of the House of Lords in Lister v Hesley Hall Limited [2001] UKHL 22, [2002] 1 AC 215, has had a significant effect on cases of alleged historic sexual abuse of the kind with which this appeal is concerned.

8. In Lister the House of Lords made it clear that, subject of course to the facts of a particular case, where there was a sufficient connection between the work of an employee and the acts of abuse committed by him, such as arise from employment in a care home or school where there is close contact between the employee and pupils or patients, with the inherent risks involved in that situation, vicarious liability is likely to be established.  This was a significant development because it has meant that it is no longer necessary for a claimant to seek to establish a breach of a duty of care by alleging that the system in place was such as to give rise to such a breach and thus to a primary liability in negligence.  It is now sufficient to establish the trespass to the person because the effect of A v Hoare is that sections 11, 14 and 33 of the 1980 Act apply and the effect of Lister is to make it much easier to show vicarious liability once a trespass to the person in the form of sexual abuse has been established.

9. There is a further important effect of the decision in A v Hoare or, more strictly Young v Catholic Care and the Home Office, which was decided at the same time.  The House of Lords construed section 14 more narrowly than it had been construed before.  As Lord Hoffmann observed at [31], by section 14(1) the “date of knowledge” is the date the claimant first had knowledge of various facts, including “that the injury … was significant”.  In applying section 14(2), as Lord Hoffmann put it at [34], the test is applied to what the claimant knows of his injury but the test is an entirely impersonal standard; not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings, but whether he would “reasonably” have done so.  You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings against a defendant who did not dispute liability and was able to satisfy a judgment.  On that basis, at [35] Lord Hoffmann rejected the notion that one must consider whether someone with the claimant’s intelligence would have been reasonable if he did not consider the injury as sufficiently serious to justify instituting proceedings.  See Lord Hoffman’s discussion at [40] to [43].           

10. We consider the correct approach to knowledge further below but will consider first the principles relevant to the exercise of the discretion under section 33.  In that regard the critical point is that the effect of the decision of the House of Lords is to transfer the relevance of the question whether the actual claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings from the enquiry whether he had sufficient knowledge for the purpose of section 14 to the consideration of the question whether the court should exercise its discretion to extend time under section 33.  As Lord Hoffmann put it at [44] and [45], section 33(3)(a) expressly says that one of the matters to be taken into account in that regard is “the reasons … for the delay” on the part of the claimant and section 33 enables the judge to look at the matter broadly.

11. Before A v Hoare the leading case on the correct approach both to knowledge for the purposes of section 14 and to the exercise of the discretion under section 33 in this type of case was KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 and 783, [2003] QB 1441.  The approach to knowledge in that case has now been replaced by the approach in A v Hoare and it is not necessary to consider it here. However, its approach to the exercise of the discretion under section 33 remains valid, subject to appropriate amendment in the light of A v Hoare.

12. In Bryn Alyn the judgment of the court, which comprised Auld, Waller and Mantell LJJ, was given by Auld LJ.  At [74] of the judgment it set out the relevant starting points, which it said were well-established or uncontroversial.  We reproduce them, in the main without reference to the authorities stated in them:

“i)  In multiple claims of this sort, a judge should consider the exercise of his discretion separately in relation to each claim.
ii)  The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it.
iii) Depending on the issues and the nature of the evidence going to them, the longer the delay the more likely, and the greater, the prejudice to the defendant.
iv) Where a judge is minded to grant a long "extension" he should take meticulous care in giving reasons for doing so.
v) A judge should not reach a decision effectively concluding the matter on the strength of any one of the circumstances specified in section 33(3), or on one of any other circumstances relevant to his decision, or without regard to all the issues in the case. He should conduct the balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all the issues, taking them all into account.
vi) Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery.  (See further below)
vii) Where a judge determines the section 33 issue along with the substantive issues in the case, he 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. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay.
viii) Where a judge has assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, he should keep in mind in balancing the respective prejudice to the parties that the more cogent the claimant's case the greater the prejudice to the defendant in depriving him of the benefit of the limitation period. As Parker LJ showed in Hartley v. Birmingham City District Council [1992] 1 WLR 968, CA, at 979G-H, such a finding is usually neutral on the balance of prejudice:

“ … in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff's case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied … as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend.”

We should not leave those remarks of Parker LJ without noting that they were qualified in Nash v. Eli Lilly & Co, [1993] 1 WLR 782 at 804E, where this Court said that there could be instances of weak claims where disapplication of the limitation provision could cause defendants considerable prejudice in putting them to the trouble and expense of successfully defending them and then not being able to recover costs against impecunious claimants.”

We return below to the extent to which those principles must be revisited in the light of A v Hoare.

13. In Bryn Alyn the court had earlier stressed these points under the heading of the nature of the discretionary exercise:

i) The discretion of a judge under section 33 is fettered only to the extent that it provides a non-exhaustive list of circumstances to which he should have regard. However, the matter is not determined simply by assessing comparative scales of hardship.  The overall question is one of equity, namely, whether it would be “equitable” to disapply the limitation provisions having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case, including those specifically mentioned in section 33(3).  See [68].
ii) The width of the discretion is such that an appellate court should not intervene save where the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement is possible.  That includes the exercise of wrong principles, taking account of irrelevant factors, ignoring relevant factors or the making of a decision that is “palpably” or “plainly” wrong.  If the court intervenes on any of those grounds, it should treat the matter as at large and exercise its own discretion in accordance with section 33.  See [69].
iii) Given the width of the discretion, the extent to which the court can give general guidance on the exercise is limited. The task for a judge is particularly difficult and onerous in cases where he has to decide whether he should attempt to determine and evaluate what happened many years before, often on little more than the uncorroborated and uncheckable assertion of a complainant. Where, as in the appeals in Bryn Alyn, there is a history of pre-care abuse supplemented by a post-care lifestyle each, individually or cumulatively, capable of causing or aggravating psychiatric harm, the further difficulty of determining the fact of injury and its extent and causation is formidable.  See [70].
iv) Many claimants, before being taken into care, have had troubled backgrounds, including sexual and/or violent abuse, and arrive in the homes in a highly disturbed state. And, often, after leaving them, their lives deteriorate into alcohol and drug abuse and crime.  Stripping away legal niceties, the question for the judge under section 33 was whether, given the delays, he could fairly try claims that the first defendant had culpably failed to improve the claimants’ physical and/or mental condition and/or had culpably caused it to worsen.  See [71].
v) The nature of the prejudice either way and the equity in allowing the action to proceed may vary from issue to issue.  See [72].

14. It is in our opinion important to note the distinction between the questions being considered in Bryn Alyn and those being considered since A v Hoare and thus in the instant appeals.  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 is that in most cases, once abuse by an employee of the home is established, vicariously liability will follow.  As to causation, it will be necessary to consider other possible causes of the state of the claimant, including his condition and lifestyle before and after the abuse but it seems to us that in many cases it will be possible to reach reasonable conclusions with appropriate medical assistance.  If the claimant succeeds on (1) to (3), quantum should not present too much of a difficulty.

16. The second point of distinction is that the exercise under section 33 is significantly different from before.  We have already referred to the speech of Lord Hoffmann in A v Hoare.  Thus at [44] he said that the right place to consider the question whether the claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings is under section 33.  This consideration was previously treated as relevant to knowledge and not to the exercise of the discretion: see Bryn Alyn at [76].  At [49] Lord Hoffmann expressly treated this part of the reasoning in Bryn Alyn as wrong.  As he put it, sub-section 3(a) requires the judge to give due weight to evidence that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries he had suffered.  Lord Carswell said much the same at [69] and [70].

17. There was some debate in the course of the argument as to whether it is now easier for a claimant to persuade a court to exercise its discretion under section 33 in his or her favour.  Mr Maxwell QC submitted that the answer was yes, whereas Mr Faulks QC submitted that the answer was no.  As we see it, as ever, all will depend upon the circumstances.  The effect of the two changes to which we have referred is likely to make it easier for claimants in two respects.  First, it is no longer necessary to establish systemic negligence, whereas previously it was, and allegations of systemic negligence presented particular difficulties for defendants after the passage of time, whereas the same may be less true of the allegations of abuse, which was previously only one aspect of the facts to be considered.  Secondly, evidence of the claimant that he or she was inhibited by the abuse, is now relevant to the exercise of the discretion, whereas previously it was not: see per Lord Hoffmann at [49] referred to above.  This is an important point because it stresses the broad nature of the discretion and that it does not focus solely on whether there has been prejudice to the defendant.  It was this that Lord Carswell had in mind when he said at [70] that there now requires to be a more liberal approach to the exercise of the discretion than had been the case.

18. On the other hand, it remains to be seen what overall effect the changes have had.  The relevant date of knowledge is now much earlier than it was previously thought to have been.  Further Lord Brown expressed some caution at [84] to [87].  Lord Hoffmann described those paragraphs at [52] as being particularly valuable and Lord Walker said at [53] that he was in complete agreement with both Lord Hoffmann and Lord Brown.  The judge described Lord Brown’s paragraphs as containing valuable guidance.  We agree.  They read as follows:            

“84. With regard to the exercise of the court's discretion under Section 33 of the 1980 Act, however, I would make just three brief comments - not, let it be clear, in any way to fetter a discretion which the House in Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307 recently confirmed to be unfettered, but rather to suggest the sort of considerations which ought clearly to be in mind in sexual abuse cases in the new era which your Lordships are now ushering in, first, by departing from Stubbings v Webb, nd secondly, by construing consideration of the inhibiting effect of sexual abuse upon certain victims’ preparedness to bring proceedings in respect of it.

85. First, so far as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffman suggests, at paragraph 52, that is likely to bear significantly upon the possibility of having a fair trial.

86. Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true), are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing. If, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial, (which must surely include a fair opportunity for the defendant to investigate the allegations, - see section 33(3)(b),), is in many cases likely to be found quite simply impossible after a long delay.

87. Hitherto, the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffman at paragraph 36). It is not to be supposed that the exercise of the court's section 33 discretion will invariably replicate that position.”  

19. As we see it, since there is no disagreement expressed by any of the members of the appellate committee with the approach of Lord Hoffmann and Lord Brown recognised the narrower nature of the enquiry, the relevance of the claimant’s inhibitions to the exercise of the discretion and the broad nature of the discretion, we do not think that he was disagreeing that the effect of the two changes to which we have referred is likely to make it easier for claimants in the two respects identified above.  He was simply sounding a cautionary note, which will be of particular relevance on the facts of some cases.  In any event it cannot be in doubt that the judge had his views in mind in this case.  

20. In the light of the considerations in A v Hoare to which we have referred we conclude that the ‘starting points’ taken from [74] of Bryn Alyn and quoted above remain valid subject to these considerations.  As to ii), it is correct to describe the exercise of the discretion as an exceptional indulgence to the claimant because, but for the exercise of the discretion, his claim will be time barred.  But it is only exceptional for that reason.  The cases stress that the discretion is wide and unfettered.

21. As to vi), we think that there are now likely to be many cases in which a judge will consider that it is not feasible to decide the issues simply by reference to the pleadings, written witness statements and the extent and content of discovery.  He or she may well conclude that it is desirable that such oral evidence as is available should be heard because the strength of the claimant’s evidence seems to us to be relevant to the way in which the discretion should be exercised.  We entirely agree with the point made at vii) that, 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 Eli Lilly, 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.   

23. In this regard Irwin J expressed some doubt about point viii) in [74] of Bryn Alyn quoted above.  Having set it out as we have done, Irwin J said this at [29]:

“29. With great diffidence, I do have some difficulty in following how the cogency of a claimant's case can be held to be neutral. An incoherent and weak case from an impecunious claimant will be likely to prejudice a defendant, who will probably defend successfully, but not recover the cost of doing so. That is easy to follow. However, it seems to me that a cogent and well-supported case for a claimant must usually argue at least to some degree in favour of the extension of discretion, since such a case would tend to carry the promise of a potentially fair trial, and since the implication would also usually be that a case which remains cogent and well supported after a lapse of time, would always have been more difficult to defend. I find it hard to think that it is usually equitable to refuse to extend the discretion because the claimant's case is weak, whilst it is also usually equitable to bear in mind how valuable is the limitation defence when the claimant's case is strong.”

What Parker LJ meant has been fully explored in the judgments of Smith LJ and the Chancellor in Cain v Francis and McKay v Hanlani [2008] EWCA Civ 1451.  All he was intending to say was that 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.  Clearly the strength of the claimant’s case is relevant and was relevant to the decision of Parker and Leggatt LJJ in Hartley.  If the action in a case, where liability has been admitted, is commenced a day late but the defendant is in no way prejudiced in defending the claim, the limitation defence would be a windfall and so as in Hartley the discretion will be exercised in favour of the claimant. 

24. As the Chancellor put it at paragraphs 80 and 81 of his judgment in Cain v Francis:-

“80.  The consequence of the disapplication of s.11 will be that there may be a trial of the claimant’s claim on its merits notwithstanding the delay in commencing the proceedings.  Has that delay caused prejudice to the defendant in its defence?  If so, does it outweigh the prejudice to the claimant of being denied a trial at all?  In addition the court will need to consider all the circumstances of the case and in particular to the other aspects of the case enumerated in subsection (3).

81.  In that context it does not appear to me that the loss of a limitation defence is regarded as a head of prejudice to the defendant at all; it is merely the obverse of the disapplication of s.11 which is assumed.  It is this consideration which, in my view, accounts for and justifies the marked reluctance of the courts, as demonstrated by the judgments to which Smith LJ has referred in detail, to have regard to the loss of a limitation defence.”

This echoes Smith LJ’s own formulation, which we believe to be consistent with our approach in paragraph 73:

“73. It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement.  The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum?  But it will also be important to consider the reasons for the delay.  Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed.  On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.”

25. In considering the exercise of his or her discretion under section 33 the judge must consider all the circumstances including of course any prejudice to the defendant.  That involves considering what evidence might have been available to the defendant if a trial had taken place earlier or it had learned of the claim earlier.  We accept Mr Faulks’ submission that 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.  We return to this point below.

26. We only add that, where a claimant gives evidence for the purposes of a preliminary issue on limitation, and where the judge exercises the discretion of the court to permit the claim to continue, every effort should be made to make sure that the claimant does not have to give oral evidence again on the issue of liability.  We would hope that this can ordinarily be achieved by ensuring, so far as possible, that the same judge will hear the trial as determined the preliminary issue of liability.  Indeed, it may well be appropriate to decide the preliminary point and then either stop or continue with the trial.

27. There remain one or two discrete points of principle which it is convenient to address in the context of the particular appeals.  We therefore turn to the section 33 issues, first in the Nugent Care Society case and then in the Wirral case.  Thereafter we will consider the issues of knowledge in so far as they arise in each case.

The section 33 issues      
The Nugent Care Society case: procedural background
28. There were four claimants when the matter was before Irwin J.  One of them was HC, whose claim was held to be time barred.  He does not appeal from that decision.  That leaves JPM, JB and DVB.  Irwin J held that all three had the relevant knowledge of significant injury.  JPM and JB do not appeal against that decision in the light of the approach to knowledge in A v Hoare.  However DVB does appeal on the knowledge point.  Irwin J exercised his discretion under section 33 in favour of JPM and DVB but not in favour of JB.  The defendant appeals in the cases of JPM and DVB and JB appeals in his case.      

29. The cases of JPM and JB were originally the subject of hearings before Holland J in 2006, which was of course before the decision in A v Hoare and thus at a time when a claimant who wished to have the limitation period extended had to sue in negligence and to allege that the defendant was in breach of a duty of care owed to him by failing to provide a proper system of care.  As explained above, it was not sufficient, as it is now, simply to assert the abuse and that the defendant was vicariously responsible for it.  There was much debate on these questions at the hearing of the appeal arising out of the proceedings before Holland J.

30. Those proceedings began as the trial of the action in three cases, which had been selected as sample cases the resolution of which would help to resolve the others, then about 60.  There were three claimants including JPM and JB but not DVB.  The defendant had sought the determination of a preliminary issue on limitation on the basis that it would otherwise lose the practical benefits of a decision on limitation in its favour.  The defendant invoked the guidance in this court in Bryn Alyn (quoted above) that

“whenever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly the extent and content of discovery …”.

However, Holland J decided not to take that course but to hear oral evidence, with the result that the hearing began as a trial.  The judge heard oral evidence from the three claimants and the relevant medical witnesses, together with evidence from Mrs Barbara Taylor of the defendant who gave evidence about the current availability of witnesses and, as he put it, erstwhile contemporaneous documents.  He also read the statements of the remaining lay witnesses.  He said this at [3] of his judgment dated 23 November 2006:

“With such evidential material I am satisfied that I can now rule upon the limitation defences and that I should do so at this mid point in the trial so as to give the Defendants belated but still worthwhile benefit of any successful invocation of the defence – and so as to avoid unnecessarily prolonging the Claimants' stress.”

31. JPM started his proceedings on 8 October 2001 and JB started his on 22 January 1998, many years after the expiry of any primary limitation period, whether from the dates of the abuse or when each claimant became 18.  Holland J held that JPM had “significant knowledge” well before October 1998 and refused to exercise his discretion under section 33 in his favour.  In the case of JB, the judge held that he also had relevant knowledge for the purposes of section 14 of the 1980 Act outside the three year period before the date he commenced proceedings.  It followed that all depended upon whether the court’s discretion was exercised in his favour and, as in the case of JPM, the judge declined to exercise his discretion under section 33 in favour of JB.  He accordingly held that both claims were time barred.    

32. Both JPM and JB appealed to this court.  The appeals were heard by May, Keene and Smith LJJ on 17 June 2008, which was after the House of Lords had decided A v Hoare.  May LJ, with whom Keene and Smith LJJ agreed, observed at [5] that the effect of A v Hoare on these claims was twofold.  First it showed, as May LJ put it, that Holland J’s decision on knowledge was more palpably correct than might otherwise have appeared.  Secondly it showed that his decision proceeded upon a partly incorrect and certainly incomplete basis.  That was because, as explained at [10] above, the scope of the inquiry under section 33 is wider that it had been hitherto.  So much was accepted by the parties.  The only issue was whether the remaining issues should be determined by this court or remitted to a judge.  Notwithstanding the submissions of the parties to the contrary, the court decided to remit it to a judge.  It was at that time thought that it would be possible to remit the matter to Sir Christopher Holland, who had by now retired, but in the event it proved impossible and the matter came before Irwin J.

33. Irwin J accepted the submission made on behalf of JPM and JB that Holland J had held that both had been abused.  Mr Faulks QC submitted on behalf of the defendant that he was wrong to do so.  Mr Maxwell QC, by contrast, submitted that he was correct to do so and indeed that this court had so held.  Both sides relied upon the judgment of May LJ and upon exchanges in the oral argument.  It is in our opinion clear that this court did not expect the claimants to have to give evidence again.  However, we do not think that it went so far as to hold that the claimants had been abused and that it was not open to the defendant to contend that the delay caused it prejudice on the ground, say, that it was no longer possible to call the alleged abuser to give evidence because, for example, he had died.

34. When Holland J heard the evidence of JPM and JB he was conducting what he intended to be the whole trial.  However, by the time he came to give his judgment he had decided that he was conducting a more limited enquiry into the issue of limitation.  Of JPM he said this at [16]:

“I was satisfied that, when giving evidence, the Claimant was doing his best to give me a fair and truthful history. Thus, as to the abuse itself, his account has been reasonably consistent and, notwithstanding the acquittal of Hepburn, it has understandably not been challenged before me. As to the subsequent 38 year period (1968 to 2006) his account is of virtual necessity blurred and broad brush but his bona fides are to my mind clear even if his reliability is inevitably more open to question.”

He said much the same of JB at [34]:

“… as with Mr [JPM] I was satisfied that the Claimant was doing his best to give a fair and truthful history. Further, whilst making allowances for inevitable difficulties in terms of recollection arising when the history stretches back to 1972, I felt that I could reasonably rely upon his evidence. I should add that over the years since his troubled adolescence Mr JB has matured remarkably so as to make a notably impressive presentation.”

He added in the case of both JPM and JB that they had had the satisfaction of being heard and believed.

35. As we read those passages, Holland J was simply expressing his conclusions on the basis of the evidence he had heard and read.  It seems likely that he would have found the abuse proved if the trial had reached its conclusion on the merits, since there is not, as we understand it, any suggestion that there is further factual material which is now available to the defendant.  However, in [16] Holland J was not focusing on the question what evidence was or might have been available to the defendant at an earlier stage as part of his consideration of what prejudice would be caused to the defendant if the action was allowed to proceed.   

36. The basis on which this court thought that the matter should be remitted, if possible to Sir Christopher Holland, was that he was not considering the effect of the two changes in the law brought about by A v Hoare, that this court had not seen the witnesses and that the judge had not dealt at all with the causative effect of the abuse or the difficulties which the defendant may have at this late stage.  Moreover, in this court May LJ expressly said at [8] that the judge had not dealt with any of the difficulties that either party may have in dealing with the fact of abuse.

37. Mr Faulks criticised in particular [52] of Irwin J’s judgment, where, having earlier referred to the above passages from the judgment of Holland J, he said this:

“Therefore, the starting point in dealing with his findings is that he found proven abuse in both cases. The details or extent of that abuse, I do not regard as being necessarily proven. However, there is sufficient precision as to the findings for considering the exercise of discretion, and that was indeed the conclusion of the Court of Appeal when they remitted the matter for consideration, initially by Sir Christopher Holland himself.”

We agree with Mr Faulks that that approach is not correct, or at least not entirely correct.  The position was more nuanced than that.  The highest it can fairly be put is that on the evidence available before Holland J the fact of the abuse was established in both cases.  We turn to the cases of JPM, JB and DVB in more detail.

The case of JPM
38. The findings made by Holland J may be summarised in this way.  JPM was born on 14 May 1953.  On 1 May 1967, having been convicted of shop-breaking, house-breaking and larceny, he was made the subject of a three year approved school order.  He went to St Aidan’s, which was then run as an approved school, on 17 May 1967, where he remained until discharge on 9 November 1968.  JPM’s evidence was that he was abused between about November 1967 and May 1968.  He identified three abusers.  The first was James Hepburn, who abused him in the Horticultural Department, which was a separate area conducted as a market garden. From time to time when in the boiler house or a potting shed Hepburn made him engage in acts amounting to gross indecency, alternatively he attempted to bugger him.  The second was Anthony Milligan, who was in charge of the Horticultural Department and who made him engage in acts amounting to gross indecency about once a month.  The third was Terence Barber, who perpetrated a minor indecent assault on him on one occasion.

39. JPM was 18 on 14 May 1971, so that the end of the limitation period referable to any cause of action for breach of duty was on 14 May 1974.  In about October 1996, in the course of a consultation with his general practitioner referable to a drink problem and his resultant conduct towards his wife, he spoke, seemingly for the first time, about the fact of having been sexually abused.  There is, however, no contemporaneous note to this effect.  On 27 October 1998, in response to a police initiative he made a witness statement recounting his experience of sexual abuse.  As Holland J observed, the statement includes the following:

“I couldn't tell anyone about the abuse I was suffering … I wanted to tell my parents but couldn't bring myself to do it … When I left St Aidans I began drinking alcohol, although I was still a young man. I have been drinking ever since. I believe St Aidans ruined my life. I have never been able to forget it … I am pleased now that I have had the opportunity to get it all off my chest. I have been asked if I intend to claim compensation for the abuse I have suffered. To tell you the truth, the thought never entered my head. I have not told this to claim compensation, as I have said before, my life has been ruined and I want these people to be brought to justice.”

The police advised him to consult a solicitor.  In the event he gave evidence against Hepburn, who was acquitted.

40. On 13 November 1998, in the course of a further consultation with his doctor, he gave a history of sexual abuse so as to be advised to undergo counselling.  In March 1999, having consulted solicitors he made an ultimately successful CICA claim for compensation for the sexual abuse.  In 2001, having changed to his present solicitors he was referred to Miss Helen Roberts, a clinical psychologist.  She reported on 1 August 2001.  These proceedings were commenced on 8 October 2001.  He was seen by a psychiatrist, Dr Peter Wood, at the behest of the defendant, on 26 November 2003.

41. We have quoted above the finding made by Irwin J on the basis of JPM’s evidence before Holland J.  We have also expressed the view that he was wrong simply to hold that the fact of abuse was established without considering, in the context of section 33, what effect the passage of time would have on the question whether the defendant was prejudiced and, if so, balancing any prejudice against other factors, including the evidence accepted by Holland J that JPM had been inhibited from reporting the abuse earlier than he did.  We must therefore consider the position for ourselves.

42. The evidence of JPM was that he was abused by three men, namely Mr Hepburn, Mr Milligan and Mr Barber.  Mr Milligan is dead and both Mr Hepburn and Mr Barber are now elderly.  Also the headmaster of the school at the time is dead.  Those are factors which suggest that the defendant will suffer some prejudice by the passage of time.  However Mr Hepburn and Mr Barber will be able to give evidence.  Moreover, these factors must be set against both the finding of Holland J that the evidence of abuse given by JPM was cogent, even after all these years, and the finding that he was inhibited from reporting it.

43. In this latter regard, Irwin J put the point thus at [54] to [56]:

“54. This claimant had been cross-examined in a very detailed way as to the detail of his account, as part of the evidence leading to those findings to which I have referred. At paragraph 23, the judge [ie Holland J] concluded that this claimant was always aware of the serious impact of the abuse. The judge accepted in paragraph 24 that JPM had tried to deny the effects, and had been inhibited from seeking advice from doctors and others, directly as a consequence of the abuse and the nature of the abuse. Indeed in paragraph 26 of his judgment, the judge described the claimant as being “reasonably inhibited”, meaning that the inhibition was comprehensible and reasonable, although he proceeded, given the state of the law he was then applying, to give little weight to that in his exercise of discretion, since of course at that stage such an inhibition fell to be considered in relation to knowledge.

55. It is also helpful to look at another passage from Holland J's judgment in paragraph 28, where he dealt with the specific considerations arising under section 33. Under section 33(a), as to the length of and reasons for the claimant's delay, he said this:

‘As to reasons for the delay, there appear to be three. First, the claimant's hope that he could cope [with] the symptoms by avoidance and alcohol. Second, the inhibitions on the complaint discussed above, and third, the claimant's lack of interest in compensation, as appeared from his police statement and his evidence to me.’

56. Thus, he identified three factors which played on the claimant's mind. Of course I adopt those conclusions, although I have to apply them rather differently. The third consideration may also reflect, in my judgment, a belief on the part of JPM that he would never get relief.”

44. Those seem to us to be compelling reasons in favour of exercising the discretion under section 33 in favour of JPM.  Irwin J then considered the reasons given by Holland J for refusing to exercise the discretion in favour of JPM.  He correctly noted that Holland J was considering a different problem.  Irwin J put it thus at [57]:

“Given that abuse in general terms has been proved here, and given that system evidence is no longer relevant or is very much less so, the findings reached by the learned Judge required to be revised, in the light of the different way this case could be tried. The details of system which formed an important part of his thinking fall away or largely do so.”

45. Those conclusions are important because, as explained above, we are not now concerned with the system at St Aidan’s but simply with whether there was abuse, whether the defendant was vicariously responsible for it, whether it caused injury and what is the appropriate measure of damages.  It was expressly recognised by Mr Maxwell in the course of the argument that JPM could not and would not now assert either that the system at St Aidan’s evidenced a breach of a duty of care owed to him or now rely upon the acts of other residents at the school.  Those played a part before, when the matter was before Holland J, but they are no longer relevant.

46. In these circumstances, and subject to what follows, given the cogency of JPM’s evidence of the fact of abuse, the fact that there is at least some evidence available to the defendant and the fact that any prejudice to the defendant has to be set against the conclusion of Holland J that there was evidence, which he accepted, that JPM was inhibited from reporting the abuse, we conclude that, subject to causation and quantum, there are good grounds for exercising the discretion in favour of JPM.  This is not in our view a case in which any of the cautionary considerations mentioned by Lord Brown lead to a different conclusion.

47. We note in passing that it is not said that any issue of vicarious responsibility will give rise to difficulty in the light of Lister

48. Before turning to causation, we should refer to a submission made by Mr Faulks that the court should have regard to the fact that no allegations are made against the defendant personally, since any liability on its part is solely vicarious.  He further submitted that the House of Lords in effect changed the law in Lister and in A v Hoare and that the defendant could not be blamed for not investigating the position before.  There is some force in this point but the allegations of abuse were always part of JPM’s case (and indeed of the other claimants), so that this is a neutral factor.  We should stress that, in reaching our conclusions under section 33, we have not drawn any inferences adverse to the defendant based upon any supposed conduct or lack of it, in previous investigations.     

49. We turn to causation.  Irwin J considered this with some care at [58] to [61] as follows:

“58. The question of causation is a separate one from system, and may be rather difficult to try in this case. The defendants say that they are hampered by loss of records, particularly prior to the claimant's entry to St. Aidan's. They rely upon the complexity of causation for JPM's problems, specifically on the impact of being a ‘ looked after child.’  They emphasise that he has had many subsequent traumatic experiences. They emphasise that there is a strong difference of degree between the experts as to the extent and perhaps the nature of the consequences of what happened to JPM, and in that context, it is helpful to look at the agreed note of discussion between the two experts.

59. The experts met on 31 October 2005, and as part of their joint answer to the fourth question set out in the note of their discussion, they said this:

‘If the court is of the view that JPM has had PTSD, Dr Wood is of the view that this has been no more than minor as a condition. Ms Roberts regards this as having been severe. In terms of aetiology, Dr Wood is of the view that adverse experiences in care will have made a minor contribution to such symptoms as JPM has experienced, as described within his report. Dr Wood recognises that abuse in care, if credited, is likely to have aggravated JPM's problems in establishing stable relationships, and his tendency to drink to excess.’

I break off to note that this means that even the defendant's expert feels here that there has been an effect from abuse, if abuse is proved.

60. Resuming the quotation from the note,

‘it is Ms Roberts' opinion that in the absence of predisposing adverse childhood events such as physical abuse and neglect, the most likely explanation for adult difficulties is the alleged sexual abuse, which has been exacerbated by further negative adult experiences. In assessing the extent of any harm arising from the alleged abuse in care, it is Dr. Wood's view that there are difficulties, in that JPM appears to have exaggerated his symptoms to Helen Roberts and to Dr. Wood. Ms Roberts is of the opinion that whilst exaggeration is a possibility, there are other explanations for invalidating scores on some test results. These include physical illness, substance misuse, trauma and the circumstances of psychometric testing. We agree that all sources of information, including documentation, clinical interview and psychometric results should be taken into account when formulating an opinion.’

61. In my judgment, the agreed note and indeed the rest of the material, demonstrate that analysis of such cases is difficult, in general terms more so because of the passage of time. That must be right, but the dispute between the experts in this case actually represents a familiar dispute, a process of interpretation, about which experts can and do take different views. The difficulty lies mostly in the inherent problem, rather than anything to do with the passage of time, so far as I can tell in relation to this case.”

50. We see no reason to disagree with those conclusions.  At the trial the judge will have the benefit of the evidence of both medical experts.  There is, in our judgment, no reason to think that the judge will not be able to reach a fair conclusion as to the state of JPM and as to the contribution, if any, that sexual abuse for which the defendant is vicariously responsible made to it.  On that basis we see no difficulty in arriving at a fair figure by way of quantum.

51. Finally, at [62] and [63] Irwin J referred to other considerations which we need not mention, save to note that at [63] he said that the experts agreed that any adverse effects upon JPM’s physical and mental health arising from the alleged abuse in care, have not extended to causing JPM any occupational disadvantage.  He then expressed his ultimate conclusion at [64] in these terms:

64. It follows, therefore, that the issue is really causation. There may perhaps be dispute about abuse, but mostly the case will turn on the effect of the abuse and general damages. The analysis of credibility and the analysis of causation are, in my judgment, not radically affected by the passage of time. It is not of course for me to pre-judge the outcome of this dispute between the parties. The question is whether the dispute can fairly be resolved, and whether the defendants have been prejudiced to any significant degree. It seems to me that this abuse was bad, and that must be weighed to some degree in the balance. If a more liberal approach to s 33 discretion is to be taken in these cases, then on balance this is a proper case for the exercise of the discretion, and I so rule.”

52. Subject to the one point of principle on which we have reached a different conclusion from the judge, we see no reason to interfere with his conclusions.  However, given the fact that we have not accepted all his conclusions, we have considered the discretion afresh and have reached the same conclusion as the judge, namely that the discretion should be exercised in favour of JPM.

The case of JB
53. JB was born on the 12 December 1957 and was therefore 18 on 12 December 1975.  In June 1971, then aged 13, he was convicted by magistrates of burglary (with 14 offences taken into consideration) and was made the subject of a supervision order.  On 27 July 1971 he was convicted before the same court in respect of two cases of burglary, with 53 cases taken into consideration, and was committed to the care of the local authority.  After an initial assessment period he was admitted to St Aidans, which was by then a care home.  He remained at St Aidans from about August 1971 until about November 1972.

54. Holland J described his complaints of abuse at [31] of his judgment:

“1. He complains of excessive and arbitrary corporal punishment, principally meted out by the bricklaying instructor, Mr FJ Colquitt.  Particular mention is made of one occasion when the latter punched him in the stomach with such force that he coughed up blood for some time thereafter and a doctor was called in to examine him.

2. He further complains of sexual 'groping' on three occasions by a housemaster, Mr. James McEvoy, each such occasion being in contrived privacy.

55. Holland J noted that McEvoy had engaged in acts amounting to gross indecency with another inmate, Paul Bolger.  JB and Bolger started to blackmail McEvoy, initially successfully by demanding tobacco as the price of their silence but then obtaining £10.  As Holland J put it, thus funded, they absconded.  Upon their eventual return Bolger complained about McEvoy's conduct and there is in existence a memorandum of the 30 July 1972 written by JB setting out events leading up to and following the blackmail.  JB did not however claim that he had himself been abused by McEvoy in that memorandum.  However, JB said in evidence that he too had complained in brief terms about sexual abuse committed by McEvoy.  Although McEvoy was suspended for a period, he was apparently reinstated.

56. Holland J summarised later events in this way.  JB married in about 1976 and told his wife something about the physical abuse.  So far as relevant, the three and six year limitation periods expired on 12 December 1978 and 1981 respectively.  On 24 November 1995, at the request of the police he made a witness statement giving his account of the sexual abuse.  The officers advised him to see a solicitor and he did so.  He said in his witness statement that was before Holland J that before being advised to seek advice from a solicitor he was unaware that he could bring a civil action against the perpetrator or the owners of the home itself.  When the police contacted him, his initial thought was that he wanted justice and that he wanted McEvoy to face criminal charges.

57. In January 1998 proceedings were commenced on his behalf claiming damages, essentially for negligence in the management of St. Aidan's.  JB’s case was that the date of knowledge was about November 1995.  In January 2001 the prosecution of McEvoy for, among other offences, an offence against JB was stayed as an abuse of process.  It is convenient to repeat here the finding which Holland J made about JB’s evidence at [34], which we have already quoted:

“34. I interpose: as with Mr [JPM] I was satisfied that the Claimant was doing his best to give a fair and truthful history. Further, whilst making allowances for inevitable difficulties in terms of recollection arising when the history stretches back to 1972, I felt that I could reasonably rely upon his evidence. I should add that over the years since his troubled adolescence Mr. JB has matured remarkably so as to make a notably impressive presentation.”

58. Irwin J approached this conclusion in the same way as he had treated Holland J’s similar conclusion in the case of JPM.  In doing so, in our judgment, he fell into the same error as in the case of JPM because he held that the fact of abuse was established without considering, in the context of section 33, what effect the passage of time would have on the question whether the defendant was prejudiced and, if so, balancing any prejudice against other factors, including the reasons why JB did not report the position earlier.

59. Irwin J should in our opinion have considered the problems facing the defendant in resisting JB’s claim.  Both the alleged abusers, Colquitt and McEvoy are dead, as is Connell, who was the headmaster at the time.  Paul Bolger is also dead and so is the claimant’s social worker, Gibson.  The defendant would further wish to rely upon the fact that JB’s account in his statement to the police in November 1995 is in some respects inconsistent with the statement he made for these proceedings.  The file relating to the investigation of McEvoy has been destroyed and it seems clear to us in ruling that the trial of McEvoy would be an abuse of process, the judge had regard to the fact that he did not believe JB when he said that he had not been interviewed by the police.  In any event the judge reached the clear conclusion that McEvoy could not have a fair trial.  These are factors which would in our view be likely to have reinforced Irwin J’s reasons for refusing to exercise his discretion in JB’s favour, if he had taken them into account, as he should have done.

60. As to the reasons why JB did not report the abuse earlier, Irwin J noted at [68] that Holland J emphasised that, as the joint note of the experts agreed, JB never had any psychological condition which would have prevented him from complaining earlier.  Holland J was however inclined to think that, for whatever reason, JB was in denial from 1972 until the police investigation years later.  The difference between him and JPM was that that was not for psychological or psychiatric reasons. 

61. There is again no reason to think that any problem might arise in connection with vicarious responsibility but the position on causation is much more problematic than in the case of JPM.  Irwin J discussed this in some detail at [69] to [72].  At [69] he set out a passage from the experts’ agreed note and concluded that they agreed that JB suffered from a prior psychological disorder before he went to St Aidan’s.  At [70] and [71] Irwin J set out two passages from the report of Dr Wood, who was instructed on behalf of the defendant, who concluded that it would be reasonable to conclude that JB had had a minor adjustment disorder in his late teens and early adult life, characterised by anxiety in terms of undressing in front of others and of closed spaces and a mistrust of authority figures.  Dr Wood added that it would be reasonable to conclude that he had a post traumatic stress disorder in his late teens at or around the lower levels of clinical significance for a year or two following police intervention.  Dr Wood said that if the court credits JB’s account, this may have been a re-emergence of symptoms he experienced in his late teens.  Finally he expressed himself in this way:

“This appears to be a case where pre-care factors arose anyway, and the alleged abuse in care have each contributed to the claimant's problems as an adult.  I estimate that the attribution can be divided 60% pre-care, 20% alleged abuse in care and 20% the process of being in care generally.” 

As Irwin J observed, it follows that at least in that one passage, the defendant's expert did venture some attribution on a percentage basis. 

62. However, Irwin J concluded that issues of causation were more complicated than in the case of JPM.  He set out his reasoning and conclusions as follows:

“73. In terms of the specific criteria under the Act, firstly in relation to sub-paragraph a), the length of the delay is somewhat less than that of JPM, but it is still long. As found by Holland J., this claimant had no thought of suing. There was a clear inhibitory effect. It is to be noted this is much less serious sex abuse than in the case of JPM.

74. When considering the extent of delay, the evidence adduced would be less cogent, but this mostly bears on the issue of system which has gone. The primary abuse is proven, although its detail might need to be elaborated. There was a pre-existing disorder. There is a range of missing documents here, which both sides agree might have quite a degree of significance for causation. The causation issue seems to me to be more complex than in JPM. The trial of that issue seems to me undoubtedly to be affected by time. Dr. Wood gives some ascription in what seems to me, with great respect to him, to be rather a throwaway and clearly very approximate conclusion. On the facts of this case that cannot act to set aside the difficulty of causation.

75. The conduct of the defendant does not arise here. Nor is there any history of disability, meaning that limitation should be suspended in time. I have dealt already with delay by the claimant, and of the steps taken by the claimant in what I have said.

76. In considering whether it would be proportionate to exercise a discretion here, I do bear in mind that this again is a general damages only claim. It seems to me that causation evidence will mean a trial of experts, involving the assessment of a previous psychological disorder which will not necessarily be straightforward. It is not a large claim, on any view.

77. Is it equitable to let the action proceed, with all of those considerations in mind? Accepting that abuse has been proved here and that this claimant has been believed, I bear in mind that the House of Lords has made clear that cannot be the only consideration. Not every abused person, even where that is established, can proceed. The nature of the abuse here is much less stark. On balance, I do not extend discretion in the case of JB.”

63. Mr Maxwell submitted that it was wrong to have regard to the size of the claim in the exercise of the discretion under section 33.  However, in our judgment, it is relevant to have regard to the question whether it is reasonable and proportionate in all the circumstances to permit the claimant to proceed, notwithstanding the difficulties which the passage of time would cause for the defendant.  It is well settled that proportionality is a relevant factor in the exercise of the discretion: Adams v Bracknell Forest Borough Council [2004] UKHL 29, [2005] 1 AC 76, per Lord Hoffmann at [55], approving Robinson v St Helens MBC [2003] PIQR 128 per Sir Murray Stuart-Smith at [33].  It is true, as Mr Maxwell submitted, that in Adams Lord Hoffmann referred at [55] to the possibility of “special features about the reasons why [the claimant] left his claim so late which tilt the balance in his favour” but proportionality remains a relevant factor together with all the other factors, including the reasons why the claimant delayed.  In the case of JB, in our judgment, Irwin J took them all into account.

64. Mr Maxwell submitted that the judge did not have regard to the fact that the authorities support the proposition that the discretion is a broad one and, in particular, that the court should approach issues of apportionment between competing causes with the use of a ‘broad brush’ where precise apportionment is impossible.  We accept that that approach is indeed supported by Bryn Alyn per Auld LJ at [113] to [114] and [117] to [120].  However, there is no reason to think that Irwin J did not have that principle well in mind.  Each case depends upon its own considerations and he made a careful comparison between that of JPM and JB.  We detect no error of principle in his approach in that regard.  

65. The only error he made was that identified above with regard to Holland J’s finding that there was abuse and, for the reasons we have given, we have concluded that if he had not done so, he would have been all the more likely to have refused to exercise his discretion in JB’s favour.  We detect no error of approach in [73] to [77] of Irwin J’s judgment.  However, it may be that, strictly, having held that he did make one error of principle, we must exercise our own discretion.  Having reconsidered all the relevant factors afresh we have reached the same conclusion as the judge, namely that it would not be equitable to allow this claim to proceed.

66. We should add in this connection that we are not persuaded that there is anything in the European Convention on Human Rights or the Human Rights Act 1998 which leads to any different conclusion.  It had long been recognised that some claims may be time barred and it is now clear how the principles should be applied in cases of this kind.  

The case of DVB
67. Holland J did not consider the case of DVB; so Irwin J did not have his reasoning as a starting point.  As already stated he exercised his discretion in favour of DVB.  The question is whether we should interfere with the exercise of that discretion.  It is well settled that this court, as a court of appeal, will not do so unless the judge erred in principle by taking account of an irrelevant consideration, failing to take account of a relevant consideration or reaching a conclusion which was outside the ambit within which reasonable disagreement is possible and can thus be said to be plainly or palpably wrong.  This is an important consideration in this class of case because the discretion is essentially that of the judge and it is desirable to limit the costs by having as few appeals as possible.  In particular, absent an error of the kind we have mentioned, this court should not substitute its own view for that of the judge.  These principles are well settled in this class of case: see eg Bryn Alyn per Auld LJ at [68] and [69], Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189 per Ward LJ at 197 and Farthing v North East Essex Health Authority [1998] Lloyd’s Rep Med 37.

68. Irwin J considered the case of DVB in considerable detail between [78] and [110] of his judgment.  It is not necessary or appropriate for us to repeat what he said in detail.  In short the position of DVB was this.  He was born on 21 January 1964.  He grew up in a difficult and poor family.  By the age of 12 he was very difficult to control and got into trouble at school.  He committed a series of offences of burglary in 1977, 1978 and 1979 and he was placed in care.  He was placed in St Aidan’s in May 1979 and stayed until August, when he was convicted of a further offence of burglary and sent to a detention centre for three months.  He then returned to St Aidan’s in October 1979 and remained there until March 1980.  His housemaster during part of the time he was there was Colin Dick.  For details of the above see [78] to [81] of the judgment.

69. Colin Dick was convicted of significant sexual offending while at St Aidan’s.  On 7 June 1995, he pleaded guilty to some of the counts on a 16 count indictment, all relating to his period at St. Aidan's.  Irwin J noted at [82] that the Crown Court record stated that the police considered it better to accept the pleas offered rather than put the victims through a three week trial.  The counts on the indictment related to ten different complainants, all male, and all the offences, which were either indecent assault or buggery, took place between 1978 and 1981. The pleas related to four of the ten complainants.  The most serious offences of buggery ranged from Christmas 1978 to a period between July 1980 and June 1981.  Colin Dick was sentenced to four years imprisonment.

70. Although DVB was not a complainant in any count on the indictment, he had given a statement to the police alleging sexual offending against him by Colin Dick.  Irwin J set out the detail of this part of DVB’s statement to the police, his witness statement and his evidence at [84] to [87].  In short his evidence was that Colin Dick was friendly, indeed over friendly, to all of the lads living in the unit, including DVB, permitting them to enter his flat at will, to smoke and to drink alcohol.  In this action DVB complains of one incident some time in the middle of 1980, when he was 16.  Colin Dick returned to the flat from a public house having drunk a good deal, sat down beside him, put his arm around him and started to kiss him on the lips. Colin Dick told DVB how he did not want to ‘shag him or anything like that’, but did want to show how much he loved him.  At [85] Irwin J quoted this part of DVB’s evidence:

“He then started to play with me. He put his hand on to my penis over my trousers. I was fully clothed. He then undid my trousers. I was totally numb. I felt trapped. I just sat there. He then had oral sex with me. I could not believe what was happening. He continued until I ejaculated, and I think he used a tissue to clean it up, but I cannot be sure.”

The judge noted that essentially the same account was recited in the claimant's witness statement and in evidence in these proceedings.

71. DVB told the police in 1995 that he had never told anyone about what had happened until talking to them.  He said in evidence that following that episode, he had a strong reaction against his abuser, and sought to avoid him as much as possible.  He ran away from Colin Dick.  He said:

“Really it was just self-preservation. I did not want to go through that again, and I also feared that if he did anything to me again, it would escalate, which absolutely terrified me. At the time I thought a lot about what had happened, and wondered if I was homosexual.”

72. When DVB returned home in March 1980 he led a troubled life.  He committed burglary in 1980 and between 1980 and 1995 he abused alcohol, cannabis, LSD and amphetamines.  He married when at the age of 21 or 22 but his relationship with his wife Paula was violent throughout the marriage. As Irwin J put it at [89], on his own account the violence was usually as a result of drink or drugs.  It appears that he was an alcoholic.  The judge noted at [90] that he had frequent and sustained, if not continuous, employment over those years in a variety of unskilled or semi-skilled jobs, and was regarded as being a good workman.

73. DVB’s evidence was that telling the police of what had happened with Colin Dick was something he immediately regretted:

“It dragged me into the past, and all that I tried to push down, was suddenly in front of me and would not go away. I felt it was ‘present’ again. It was like it had just happened. It was not new for me. I told my wife why the police had been round, that I had been abused. It was news to her. It did not help our relationship, in fact it made me more isolated.” 

74. At [94] the judge noted that DVB’s GP records for the period 1980 to 1998 make no reference to alcohol or drug abuse or to domestic violence, which, on the claimant's own account, was continuing.  Things changed as from 19 October 1998.  DVB then complained to his GP of panic and anxiety, reciting that he was drinking too much, that he had been caught drink driving, that his relationship had problems and that he was at that stage trying to adopt his brother's children, who had in fact lived with him for four years.  The GP’s note includes this:

“Abused as a child in care. Been contacted by the police to make a statement to get compensation. Feels need to talk. Brandy started everyday, and brandy when has money. Job as welder.”

The GP referred the claimant for counselling, which was intended to focus on the alcohol abuse, and signed him off as being sick.

75. DVB’s marriage finally broke down in December 1998.  As Irwin J put it at [95], the narrative and medical records show that over the following years, this claimant had a stormy life, with continuing problems with alcohol and indeed recurrent domestic violence with a further partner, which led to at least one conviction for assault.  Although DVB’s account of that was that he was in fact defending himself from his drunken partner, he accepted responsibility for what took place in that incident, so that the couple’s children would not be taken into care.  The judge said that he would make no findings about any of that.

76. From [96] to [101] Irwin J considered the expert evidence obtained by both sides.  In summary he noted at [96] that DVB’s expert, who was a clinical psychologist called Lesley Cohen, had seen him in 1999 and more recently in 2008 and had available a fairly full range of medical records and other documents.  She did not indicate any difficulty in reaching conclusions, her central conclusion being that there was a reaction to the suggested sexual abuse being brought out in 1995, which she said was best perceived as being a chronic adjustment disorder coming to a crisis in 1998.

77. The defendant instructed the clinical psychiatrist Dr Wood, who saw DVB and first reported in 2003.  He too had access to the various records and he too did not indicate that he had any difficulty in reaching conclusions about the case.  His opinion was that DVB would have suffered psychological difficulty in adulthood in any event and that he has done reasonably well in life, considering the start he had prior to going into care.  Dr Wood added that psychometric tests suggested the claimant has been malingering, by consciously exaggerating his symptoms at the time of his assessment, and that the claimant should be regarded as an unreliable informant.

78. Irwin J added at [99] that it was helpful to add two passages from Dr Wood’s report as follows:

“I am largely in agreement with Mrs Cohen's analysis of this case. A significant percentage of DVB's difficulties in life should be attributed to his genetic inheritance and pre-care childhood experiences. The alleged sexual abuse DVB suffered was comparatively minor, when compared with that experienced on a repeated basis by many of the claimants in historical/sexual abuse litigation. The history here is one of DVB suffering psychological difficulty, when his memories of being abused were brought to the fore by the police investigation. In the course of our assessment, the claimant was not found to be a reliable informant. He is probably exaggerating the symptoms in relation to the alleged sexual abuse.

If the court accepts the claimant's account of matters, the diagnosis of adjustment disorder, anxious and depressed type, is a reasonable one. Anxiety, depression and a tendency to drink to excess were associated with this process. There does not appear to be any other significant sexual discussion in the case. Further to receiving appropriate treatment, DVB has made a good recovery. His drinking is under control, his drug abuse is largely behind him and he is able to function normally.”

The judge added at [100] that Dr Wood concluded:

“Assuming the court accepts his account of matters, DVB reacted badly to his memories of childhood sexual abuse being reawakened in the course of the police investigation. It is likely that he suffered an adjustment disorder reaction of moderate intensity, lasting about three years as a result of this, and in due course DVB has made a good recovery. His prognosis is now good.”

79. Having referred to the expert evidence in that way the judge correctly concluded at [101] that there was a relatively narrow issue between the experts. They agreed DVB has a lot of problems and that, if his account of events is to be accepted at all, there was an adjustment disorder or reaction to the police involvement, but it is not of major consequence and it is limited in time.  Moreover, it arose in relatively recent years.  The judge then considered whether, in all the circumstances, it was equitable to allow DVB to continue.

80. His conclusions may be summarised thus:

i) In June 1995 Colin Dick pleaded guilty to four counts of buggery and three of indecent assault for which he was sentenced to four years imprisonment, albeit DVB was not one of the complainants on the indictment.  That was powerful evidence in favour of DVB’s case that he was abused.

ii) The judge rejected DVB’s case that he did not have relevant (ie significant) knowledge until a sufficiently late date to make the commencement of proceedings within the primary limitation period.  As the judge put it at [104], this was not casual fondling but oral sex.  Although it was only one episode of oral sex, it had a marked effect on DVB at the time.  He avoided Mr. Dick immediately and his reaction against what happened was strong.

iii) As to the length of and reasons for delay, the abuse took place in October to November 1979, so that the primary limitation period would end three years from DVB’s majority, that is to say, on 21 January 1985.  His police interview was on 27 March 1995.  Shortly after 26 March 1997 he received a letter from the defendant's solicitors enquiring about whether he was concerned about sexual abuse at St. Aidan's.  On 14 June 1999 he had got as far as to have an application for Legal Aid made out and proceedings were issued by 30 March 2001.  It therefore follows there was a period of over 22 years from the abuse and 16 years from the end of the primary limitation period to the issue of proceedings.  It is a long delay, but it is to be explained by the claimant's avoidance of referring to the sexual abuse and its consequences.  That may be so in this case because, although there was a significant injury at the time, in the sense of a significant sexual assault, the psychological consequences for the claimant arose only from 1995 onwards.  Thus, within two years or so of the beginning of the effects of the reawakening of these events for DVB, the defendant was aware that there was a question as to whether he was the victim of sexual abuse in St. Aidan's.  See the judgment at [106].

iv) As to causation, the key issues relate to the later 1990s and are limited in extent: see [107].

v) Will the evidence of the key issues be made less cogent by the passage of time?  The fact of abuse will not be made less cogent in this case. There is no possibility that a convicted abuser such as Colin Dick will realistically be called as a witness to deny a single episode of this kind, given the convictions in his case.  The key medical issues are more recent, although still old by now, given the dreadful delay which has happened in these cases since the issue of proceedings.  The issues are narrow and well capable of resolution.  There is little loss of cogency as to the trial of the medical issues, causation and what happened in late 1990.  See [108].

vi) There is no relevant conduct on the part of the defendant within section 33(3)(c) and no question of disability within (d): see [109].

vii) As to proportionality, although the damages here will be relatively limited, this was not trivial abuse, even though it was a single incident.  The issues should be capable of resolution at a short trial.  Although the case will need active case management to ensure that it is kept within bounds, there is no reason why that should not be achieved.  See [110]. 

viii) In all the circumstances it is both proportionate and equitable to permit this case to proceed: see [110].

81. We detect no error of principle on the part of the judge in reaching those conclusions.  Moreover, his conclusion is well within the generous ambit of the discretion conferred upon him.

Conclusions under section 33 in the Nugent Care Society case
82. For the reasons we have given, we have reached the conclusion that we should not interfere with the way in which Irwin J exercised his discretion in any of these cases.  Thus we agree with him that the discretion should be exercised in favour of JPM and DVB but not in favour of JB.

The Wirral case
83. The appeals in this case are brought from an order of His Honour Judge Main QC made on 15 December 2008 pursuant to a judgment in which he held that the claimant had significant knowledge for the purposes of section 14 of the 1980 Act but in which he exercised his discretion under section 33 so as to allow the claimant to pursue his claim in assault and trespass to the person against the defendant.  Judge Main gave each party permission to appeal.  In this part of the judgment we consider the exercise of the discretion under section 33.  We have already summarised the relevant principles as we see them.  So we can turn to the facts.  We note in passing that the claimant no longer proceeds with a claim in negligence against the defendant.

84. The claimant’s case is that at a time in or about 1974 when he was resident at Shackleton Road in Wallasey, which was a small children’s home known as a ‘family group home’ run by the defendant, he was the victim of numerous serious sexual attacks by one Stanley Robbins.  It is said that the defendant is vicariously responsible for those attacks and thus liable in damages to the claimant.  According to the claimant, the abuse sometimes took place in the home and sometimes in the car.  It is not necessary to set out his evidence in detail here but the abuse included Mr Robbins arousing him by getting him to read pornographic magazines and then performing oral sex on him, expecting him to ejaculate in his mouth and then getting him to do the same in return.  On one occasion he tried to penetrate the claimant without success.  On other occasions he simulated buggery.  

85. The claimant was born on 17 January 1964.  In August 1973, when he was nine years of age, he was taken into care at the request of his father.  Except for a very short period of two weeks, he was at Shackleton Road from then until November 1976 when, at the age of nearly thirteen, he was returned to the care of his mother.  It was pleaded that Stanley Robbins was the warden of the home but in fact, as the judge held, the warden or ‘house mother’ was Stanley Robbins’ wife, Jean Robbins.  The judge held at [2] of his judgment that when Mrs Robbins took up her position in December 1974 Mr Robbins moved in as well.  The home was well run and, apart from the allegations against Mr Robbins, the claimant has no complaint about it.  It is now common ground that Mr Robbins was never employed by the defendant in the capacity of warden, although it is admitted in its defence that he was employed as an escort officer from 1 April 1975 until 11 May 1985, when he retired aged 65.  The judge noted that the documents confirm that he applied for the post of escort officer on 28 January 1975 and gave Shackleton as his address.  As escort officer he was employed to escort young persons in the care of the defendant to various appointments, as for example to court or to see a social worker or probation officer.  According to the claimant, abuse would occur on the way back from such appointments after the others had been dropped off.

86. On the account of the claimant, however, Mr Robbins was the ‘house father’.  His case is that he was subjected to regular sexual abuse at the hands of Mr Robbins.  The claimant kept the abuse secret.  He did not even tell his brother, who had been taken into care at the same time.  Nor did he tell anyone on the staff at the home.  Further, he did not tell his mother when he was returned to her or his GP.  The judge noted at [5] of his judgment that the claimant said in paragraph 20 of his statement made in 2005 in these proceedings that he ‘just wanted to bury it, it was the only way I could see to deal with it’.

87. It is common ground that after he was returned to his mother he continued his development in a quite normal way.  At [6] the judge described his employment history, which included his becoming an operations manager and, as the judge put it, being well settled in his employment.  Also he was married and his wife had a baby in 1999.  Although he never forgot what had happened to him, as he put it to the judge, ‘he had just compartmentalised it and just put it to the back of his mind …’.  He recognised at the time that what Mr Robbins had done was wrong and described his behaviour as ‘very serious’.

88. On 21 November 2000 he was contacted out of the blue by the police who were investigating allegations relating to local care homes.  Although he could not help them with their particular enquiries, for reasons he could not explain he did mention his own experiences to them.  He still did not discuss it with his wife.  At about the same time he was experiencing other difficulties in his life, including matrimonial problems and some stress and anxiety at work.  As a combination of these factors, as he put it in cross-examination, the disclosure he had made to the police had a profound effect on him and he was in emotional turmoil.  As the judge explained at [9], a fortnight later he told his wife and, as a result of things said or implied that he found distressing ‘along the lines that children who were abused became abusers themselves’, he felt that he lived under a cloud of suspicion and could not face returning to work.  He was subsequently divorced.

89. A letter before action was written on 21 October 2002, which included a statement relating to abuse at the hands of Mr Robbins.  The claim form was issued on 20 June 2003.  There followed some delay because a number of test cases including A v Hoare were proceeding through the courts.  The judge correctly described the effect of A v Hoare at [13].  The claimant himself gave evidence before the judge, as did Dr Webster for the claimant and Dr Boakes for the defendant.  Both experts were surprised about the inaccuracy of some of the claimant’s evidence: see the judgment at [15].  Dr Boakes expressed the view that this ‘marked poverty of memory’ raised the question whether he had developed a false memory, that is remembering something that in fact never happened.  However, she appears to have resiled to some extent from that view: see [16].

90. At [17] the judge set out the agreed position as between the expert psychiatrists, who had discussed the position between them.  It was as follows:

“a. From a psychiatric perspective, the events of abuse, if they be established, did not result in any psychiatric injury.
b. After the disclosure to the police in 2000, the claimant did experience the onset of a psychiatric illness, which was a mixed picture of anxiety and depression characterised by a series of panic attacks.
c. The police interview was a trigger – what the interview triggered is a matter of dispute:

i. Dr Webster thought it triggered a recrudescence of memories of abuse which, although still in his memory, he had been able not to dwell on over his adult life, but which when they came to the fore, gave rise to a psychiatric injury in the weeks following his disclosure.
ii. Dr Boakes, leaving aside the ‘possibility’ of a false memory, whilst acknowledging that the interview triggered a depressive episode, felt that this was in fact due to the problems he was experiencing in his marriage and at work, which was always liable to come about, once the right trigger came along.  So the earlier abuse in effect was the causa sine qua non of the anxiety/depression (the injury) but not the causa causans of the injury.”

91. Having heard the evidence, including that of both the claimant and the experts, the judge concluded at [19] that, whereas the claimant may well have experienced feelings of defilement, degradation and humiliation and, after the events in question, experienced feelings of revulsion, disgust and even feelings of guilt – whilst these are very understandable feelings of human emotion, they are not injuries properly so called – at least not recognised by law.  The judge reached that conclusion in part at least on the basis of the decision of this court in Albonetti v Wirral MBC [2008] EWCA Civ 783.  As appears further below under the heading of ‘knowledge’, the judge held that the placing of his penis in the mouth of the claimant was a battery and a trespass to the person, that his cause of action accrued at that time and that he had knowledge of ‘significant injury’ no later than his sixteenth birthday.  The claimant reached his majority on 17 January 1982.  It followed that his claim became time barred on 17 January 1985, subject to the possibility of the court exercising its discretion under section 33 of the 1980 Act.

92. Shackleton Road closed in 1985.  Mrs Robbins died on 21 July 1996 and Mr Robbins died on 29 June 2004.  He was 84 years of age.  His line manager has also died.  At [31] the judge set out the submissions made by Mr Fewtrell on behalf of the defendant in some detail.  He expressly recognised the effects of long delay.  At the end of that paragraph he posed the question: how does the judge resolve factual disputes 30 years after the event, without injustice to one party or the other?  At [32] he posed the next question: with such a delay how do you go about investigating the allegations, when witnesses have long since left the employment of the defendant, when witnesses have died and when some if not all the documents have been lost, misplaced or destroyed?

93. At [33] the judge directed himself specifically by reference to the considerations set out by Lord Brown in A v Hoare at [86] which we have quoted and discussed above.  At [34] the judge recognised the difficulties in investigating the matter which, as he put it, have culminated since the mid 1980s, when both Mr and Mrs Robbins retired.  At [35] he noted Mr Fewtrell’s submission that the claimant’s case on vicarious liability was very weak and at [36] he noted the submission that his case was also weak because both psychiatrists commented how unusual it was to see such errors of recollection and account.  By way of contrast, at [38] the judge noted Mr Levinson’s submission that the defendant had an opportunity to investigate the allegations between the date of the letter before action in 2002 and Mr Robbins’ death in 2004.  He also noted the submission that a senior manager of the defendant, Ms Hassall, who gave evidence, was not able to explain what, if any, steps had been taken to interview a number of witnesses who might be able to give evidence about the system, which might throw light on the issue of vicarious liability.

94. At [41] the judge noted Mr Levinson’s submission that, at any rate according to Mr Scorer, a partner of Pannone, three other residents of the same home independently made statements against Mr Robbins, although they were not at the home at the same time as the claimant and the judge was not shown statements from them.  It appears that Mr Robbins was interviewed by police in respect of those allegations in 2003 and retained solicitors to assist him in connection with a trial before the Crown Court in July 2003 in connection with a complaint by H.  That trial did not take place, perhaps because Mr Robbins was approaching his 83rd birthday and was in poor health.  He was at one time willing to assist the defendant with their enquiries but then declined to do so through his solicitors.

95. The judge considered the various considerations relevant to the exercise of his discretion under section 33 at sub-paragraphs (a) to (e) of [42].  He ultimately concluded that he should exercise his discretion in favour of the claimant.  His reasons may be summarised (without quoting them word for word) in this way.

a) Reasons for delay.  The claimant gave consistent and understandable reasons why he did not make the allegations earlier.  In short he had got on with his life.  The judge noted Dr Webster’s view that the actions of the claimant were not all that unusual and quoted part of [54] of the speech of Baroness Hale in A v Hoare including her view that the abuse itself is the reason why so many victims do not come forward until years after the event.  In short, the claimant was able to function quite normally until the delayed effects of his disturbance manifested themselves in November 2000 and the reason why things changed after that is explicable.

b) Effect of delay on the evidence.  The effect of a delay of over 30 years will be to have a profound effect on the evidence available.  This was especially true of the pleaded allegations of negligence relating to the system operated at the home.  On the other hand, the evidence as to the fact of abuse from the claimant and other witnesses as similar fact evidence may well still be very cogent and reliable.  The absence of Mr Robbins will prejudice the defendant but the judge wondered whether he could do more than deny the allegations.  All the witnesses can be cross-examined and the inconsistencies in their evidence will count against them, so that the evidential prejudice is not all one way.  The judge however expressly recognised that the court will face a difficult task in weighing up the evidence.

c) The conduct of the defendant.  There is some substance in the criticisms made by Mr Levinson.  The judge was unimpressed by the evidence of Ms Hassall with regard to the apparent inability of the defendant to obtain the police file or to interview a number of witnesses who had been identified.  As we understand it, those witnesses might well be able to assist on such issues as there may be relating to vicarious liability.  The judge did not hold the fact that the defendant did not take a statement from Mr Robbins against it because he properly recognised that he was an elderly man in poor health.  Nevertheless he said that in the end he concluded that, after making all allowances as to the difficulty in investigating a very stale claim, the defendant was, as he put it, going slowly in a half-hearted effort.

d) The promptness of the claimant.  The judge acknowledged the fact that the claimant was in ill health himself in 2001 but said that it was surprised that it then took him until 2003 to make the claim.  However he doubted whether the delay in that period was very important.  The claim was presented within three years of 2000.  He had of course dealt with the earlier delay in (a) above.  See also (e) below.     

e) Steps taken by the claimant.  Once the claimant realised that he was ill as a consequence of his disclosure to the police, the claimant did seek assistance.  The judge recognised that he did not do so after the indecent assaults but he was very young and the nature of the abuse in itself makes it difficult to be open because of the humiliation and shame such an acknowledgment brings.

96. In all the circumstances the judge concluded at [43] and [44] that, while it would not be fair to allow the claimant to continue to advance allegations of negligence against the defendant because it would not be possible to have a fair trial in that regard, the same was not true of the allegations of sexual abuse.  He said that he could see no good reason why those allegations should not be put before the court so that the court can assess the weight, consistency and cogency of the evidence relied upon in support of the allegations.  He expressly recognised that it will be necessary to look into what Mr Robbins was employed to do as an escort and what his duties were in the home.  He concluded that there will be abundant evidence to enable those factual questions to be answered adequately, although he said that what the legal effect will be remains to be seen.

97. The question in this appeal is whether the judge made an error of the kind which would permit this court to interfere in accordance with the principles identified above.  In our judgment, the judge made no error of principle.  He expressly recognised the relevant principles as now set out in A v Hoare and, as the quotation from the speech of Lord Brown makes clear, he had in mind the note of caution which Lord Brown sounded.  Having correctly stated the principles, it was then for him to assess the evidence and to weigh the various factors one way and the other.  That is pre-eminently a matter for the judge and not this court.

98. The judge focused on two key areas, namely the evidence of the fact of abuse and the issue of vicarious responsibility.  As to the first, the judge recognised the potential difficulties but the issue is whether the claimant’s evidence should be accepted.  If Mr Robbins were here he could only deny it.  It is of some relevance that in her first witness statement the defendant’s witness, Ms Hassall, who is or was Head of Service, Children and Families, said that Mr Robbins was not willing to provide a statement, so that it is far from clear that Mr Robbins would ever have been willing to assist the defendant.  However that may be, there never were any witnesses to the alleged assaults other than the claimant and Mr Robbins.  As the judge observed, the inconsistencies in the claimant’s account can be tested at trial, the burden of proof of course being on the claimant.  The difficulties facing the defendant were pressed on us as they were on the judge.  We are not persuaded that the judge erred in principle or that he was plainly wrong in this regard.

99. As to vicarious liability, the judge did not identify the abundant evidence to which he referred at [43].  However, the legal principles are now clear from Lister.  As to the facts, there is a good deal of evidence which will be available at trial to assist the court.  In Dr Boakes’ report she referred to a number of social service records.  They included a welfare report dated September 1975 which described the home as having ‘two house parents and two other members of staff’ and the claimant and his brother as having been ‘under the present house parents since 1974’.  Dr Boakes also referred to a social work report from April 1977 as stating that prior to returning to his mother ‘GR was resident with foster parents in Wallasey, a Mr and Mrs Robbins’.  It also stated that ‘GR still visits Mrs Robbins and is occasionally taken out on trips by Mr Robbins’.  While we can see that those passages may provide material for cross-examination on the question why the claimant returned to go out on trips with Mr Robbins if he had been abused by him as he alleged, they also provide some support for the claimant’s evidence that he was regarded as the ‘house father’ and are consistent with the claimant’s case that he went out on trips with Mr Robbins in his capacity as escort officer.  We note that it is not suggested that, if the claimant’s evidence of fact is accepted, it would not be open to the court to hold, applying the principles in Lister, that the defendant was vicariously liable for the sexual assaults.

100. In this regard we should add that it does seem to us to be likely that more material will in due course be available from the defendants.  A perusal of the very short statement made by Ms Hassall and of her oral evidence supports the judge’s conclusion that much more could have been done in this regard in the past and it seems likely to us that more evidence will be available in the future.  Unfortunately Ms Hassall was able to give very little evidence based on her own knowledge but there is a list of witnesses who may be able to assist on the question how the home was run and the part, if any, played by Mr Robbins.

101. In all the circumstances, we conclude that the judge was entitled to reach the conclusion that he did and that this court should not interfere.

Date of knowledge
102. As appears above, in the cases of DVB and GR, the claimants succeeded below in securing the disapplication of the three year limitation period by reference to section 33 and they have preserved that success in this court.  On the other hand, they failed below on their alternative case that they had commenced proceedings within the primary limitation period because time had not begun to run until years after the alleged abuse on the basis that they did not obtain the requisite knowledge at the time of the acts complained of.  As this is, in some respects, a test case it is appropriate to consider their respective cross-appeals on this issue, notwithstanding their success under section 33.

103. We have set out above the relevant provisions of the 1980 Act but it seems sensible to set out again here the critical provisions which relate to the date of knowledge.  By reason of section 11(4), in relation to an action for damages for negligence, nuisance or breach of duty where the damages “consist of or include damages in respect of personal injuries”, the primary limitation period is

“three years from –

(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured,

 whichever is the later.”

Section 14 provides:

“(1) In sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts

(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance  or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.”

104. In a nutshell, DVB’s case is that, although the abuse took place in 1979, he did not acquire knowledge that it had caused a significant injury until 1998 or 1999 and he commenced proceedings within three years thereafter (in fact on 30 March 2001).  GR’s case is that, although the abuse took place in 1975 or 1976, he did not acquire knowledge that it had caused a significant injury until about November 2000 and he commenced proceedings within three years thereafter (in fact on 20 June 2003).

The relevant findings in DVB
105. Irwin J responded to the submission that DVB only acquired knowledge of a significant injury when he was advised in 1998 or 1999 that his psychological problems were caused by the abuse in the following passage at [104]:

“This was not a casual fondling but oral sex.  Appreciating that there was only one episode of oral sex, it had a marked effect on the claimant at the time.  He avoided Mr Dick immediately.  His reaction against what happened was strong.  These are powerful indications of the fact that even at that age he realised that what had happened to him was a significant assault.  Anyone would recognise what happened on his account to be a significant assault.”

The relevant findings in GR
106. The abuse in GR’s case continued over a period of many months.  It included, but was not limited to, repeated oral penetration.  The assaults were not violent and no physical injury occurred.  Judge Main said:

“[19] … whereas the claimant may well have experienced feelings of defilement, degradation and humiliation and, after the events in question, experienced feelings of revulsion, disgust and even feelings of guilt – whilst these are very understandable feelings of human emotion, they are not injuries properly so called – at least not recognised by the law … On the facts of this case, I cannot see that there will have been a discrete injury, whether physical or psychiatric.”

“[26] On the present facts, I take the view given the vulnerability and youth of the claimant at the time these acts of sexual abuse were perpetrated that it was reasonable for him at the time not to have regarded his repeated sexual insults as ‘significant’ – he obviously knew what was being done to him was wrong and serious but he was not being outwardly injured at the time … In my judgment this was an emerging problem which had to be combated as best the claimant could and his mechanism … was to block it out. … I am satisfied that by no later than his 16th birthday, the claimant will have had knowledge as to the ‘significance’ of what I find was an injury.”

107. Thus, a cause of action accrued at the time of each incident but time did not start to run under section 11(4)(b) until the claimant acquired knowledge of significant injury, at which point it would be further postponed for two years until his 18th birthday, pursuant to section 28.  Accordingly, the limitation period expired in 1985, subject to disapplication by reference to section 33.

108. Plainly, in the light of A v Hoare, the cause of action in these cases is in trespass to the person which is a “breach of duty” for the purposes of sections 11 and 14.  A cause of action accrued on the date of each incident of sexual abuse – one incident in DVB’s case, many more in GR’s.  Unlike a cause of action in negligence a cause of action in trespass to the person does not require proof of physical or psychiatric damage.  In McGregor on Damages, 17th edition, it is stated (at paragraph 37-001):

“In so far as an assault and battery results in physical injury to the claimant, the damages will be calculated as in any other action for personal injury.  However, beyond this, the tort of assault affords protection from the insult which may arise from interference with the person.  Thus a further important head of damage is the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation that may be caused.  Damages may thus be recovered by a claimant for an assault, with or without a technical battery, which has done him no physical injury at all.”

109. It follows that in cases involving the sexual abuse of young people by, for example, oral penetration, an absence of immediate physical or psychiatric damage does not mean that the right to a significant award of damages has not arisen. 

110. In Stubbings v Webb, Lord Griffiths said (at page 506) that he had

“the greatest difficulty in accepting that a woman who knows she has been raped does not know she has suffered a significant injury”. 

In A v Hoare, Lord Hoffmann said [43] that there was “much sense” in that observation (which was also followed in Albonetti v Wirral Metropolitan Borough Council [2008] EWCA Civ 783, per Smith LJ at [24] a) and that section 14(2)

“assumes a practical and relatively unsophisticated approach to the question of knowledge.”

111. Whilst it is true that Lord Griffiths had drawn a distinction between rape and sexual abuse “that goes no further than indecent fondling of a child”, it is clear that in the present cases we are concerned with the more serious type of sexual abuse.  Indeed, since the Sexual Offences Act 2003, oral penetration is sufficient for the actus reus of rape (section 1).  For our part, however, we would disavow rigid taxonomy which would be inconsistent with Lord Hoffmann’s “practical and relatively unsophisticated approach”.

112. At this point, we ought to refer to section 38(1) of the 1980 Act which provides:

“‘personal injuries’ includes any disease and any impairments of a person’s physical or mental condition, and ‘injury’ and cognate expressions shall be construed accordingly.”

113. This provision does not appear to have been considered in Stubbings v Webb or A v Hoare, in both of which it was assumed that, for the purposes of sections 11, 14 and 33, the actions were ones “where the damages claimed by the plaintiff for … breach of duty consist of or include damages in respect of personal injuries”.  In many cases, when the pleading is settled years after the event, it will be evident that, by then, the claim has become one which includes a claim for damages relating to impairment of a mental condition, often amounting to diagnosable psychiatric damage.  However, the important issue for limitation purposes relates to the claimant’s knowledge of significant injury at a much earlier stage, often years before any diagnosis of psychiatric damage, let alone its cause. 

114. The question arises: how does this affect historic knowledge of a significant injury?  In the course of submissions, it was suggested that, at the time of, and in the early aftermath of, the sexual abuse, there might have been no knowledge of a significant “injury” as defined in section 38 and that such knowledge might only have arisen on diagnosis many years later.  We do not consider that this suggestion is correct.  Section 38 (which was not drafted with cases of historic sexual abuse in mind) tells us what the term “personal injuries” includes.  It need not be construed as exhaustive, nor need “impairment of a person’s … mental condition” be given a restrictive meaning, particularly now that we know that the relevant sections apply to actions in trespass to the person, in relation to which the relevant injury is not necessarily equiparated with diagnosable psychiatric damage.  In our judgment, it is only by taking a broad approach to the language that the need for a “practical and relatively unsophisticated approach” can be enabled to flourish.

115. All this leads us to the conclusion that the cross-appeals of DVB and GR on the issue of knowledge must fail.  In the case of DVB, Irwin J was entitled to find that he had knowledge of significant injury in the time immediately after the single event upon which his claim is based.  As regards the case of GR, in his careful judgment Judge Main was, if anything, too generous to the claimant when he fixed the date of knowledge of significant injury at the date of his sixteenth birthday. 

Conclusion on date of knowledge
116. It follows from what we have said that we dismiss the cross-appeals of DVB and GR on this issue.  The cases are essentially section 33 cases.

117. For the reasons we have given we have concluded that all the appeals should be dismissed.  In the Nugent Care Society case Irwin J was correct to hold that DVB had significant knowledge such that he failed to bring his claim within the primary limitation period.  On the other hand, although Irwin J misdirected himself in one respect, he was right to exercise the discretion of the court under section 33 of the 1980 Act to permit JPM to continue with his actions.  He was entitled to do the same in the case of DVB.   It follows that, as regards JPM and DVB, the appeals of the defendant in the Nugent Care Society case must be dismissed.  By contrast, although Irwin J misdirected himself in one respect, had he not done so he would still have exercised his discretion under section 33 to refuse to permit JB to proceed.  Alternatively he was right to do so.  It follows that the appeal of JB must be dismissed.

118. In the Wirral case the Judge Main was correct to hold that the claimant had significant knowledge such that he failed to bring his claim within the primary limitation period but he was also entitled to exercise his discretion under section 33 to allow the claimant’s claim to proceed.  It follows that both parties’ appeals are dismissed.

119. Finally, we would like to thank counsel for their assistance and to apologise for the time it has taken to produce this judgment.