The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors v CD, Court of Appeal - Civil Division, October 23, 2018, [2018] EWCA Civ 2342

Resolution Date:October 23, 2018
Issuing Organization:Civil Division
Actores:The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors v CD
 
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Case No: A2/2017/0562

Neutral Citation Number: [2018] EWCA Civ 2342

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION,

LEEDS DISTRICT REGISTRY

His Honour Judge Gosnell

5DW01675

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23 October 2018

Before :

LADY JUSTICE RAFFERTY

and

LORD JUSTICE LEWISON

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Between :

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Mr Michael Kent QC & Mr Nicholas Fewtrell (instructed by Keoghs LLP) for the Appellant

Mr Hugh Preston QC & Ms Susannah Johnson (instructed by Switalskis LLP) for the Respondent

Hearing date : 16 October 2018

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JudgmentLord Justice Lewison:

  1. In a reserved judgment given on 21 December 2016 HHJ Gosnell exercised his discretion under section 33 of the Limitation Act 1980 to disapply the limitation period laid down by section 11 of that Act; and found that CD had been anally raped in July 1990 by Brother James, a member of staff of St William's Community Home, the school that he was then attending. At the time of the incident CD was 12 years old. CD began his action in January 2006 but did not explicitly say that he had been raped until February 2014; some 24 years after the alleged rape and 8 years after the start of his litigation. The defendants appeal on the basis that the judge was wrong to exercise his discretion to disapply the limitation period.

  2. It is now settled that an action for deliberately inflicted personal injury is subject to the limitation period laid down by section 11 of the Limitation Act 1980. That section provides:

    ``(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

    (4) Except where subsection (5) below applies, the period applicable 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.''

  3. Section 1 (5) applies only where the injured person dies, which is not the case here. Thus the limitation period is three years from one of the two dates in section 11 (4). The date of knowledge is defined by section 14 (2). It is an objective standard of the seriousness of the injury and nothing more: A v Hoare [2008] UKHL 6, [2008] 1 AC 844 at [35]. In so far as the action alleges rape, it is common ground that the date of knowledge is no later than the date on which the cause of action accrued; that is to say July 1990 (see A v Hoare at [43] approving Stubbings v Webb [1993] AC 498, 506; Albonetti v Wirral MBC [2008] EWCA Civ 783 at [24]). It follows that under section 11 any action ought to have been brought by July 1993.

  4. However, in July 1993 CD was still a minor. Section 28 (1) of the 1980 Act, as it applies to section 11 by virtue of section 28 (6), provides:

    ``Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of [three] years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired.''

  5. Section 38 (2) provides that a person is under a disability if he is a minor.

  6. Section 33 of the 1980 Act gives the court power to disapply the limitation period. It provides, so far as relevant:

    ``(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 the 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.''

  7. Before coming to the judge's exercise of discretion it is necessary to go into the history of the allegation. The rape is said to have taken place on a trip to Scotland in July 1990. A number of boys went on that trip, which was led by Brother James. At that time one of the key workers concerned with CD at St William's was Trish Monkman, a residential social worker. She had a good relationship with CD, as shown by an affectionate letter that she wrote to him shortly after her departure from St William's in October 1990. In a note compiled in the summer of 1990 for the benefit of her successor, Cathy Burke, she recorded:

    ``[CD] fills his leisure time well and fairly rarely complaining of being bored or sitting around. He enjoys all outdoor activities and was fortunate enough to spend a week in the Highlands of Scotland with Brother James.''

  8. At about the same time, Mr Allen, one of CD's teachers, also made a note in which he said:

    ``During the week 16th to 20th July, [CD] spent a week in Scotland with Brother James. He had a great time and returned to class with work completed, seemingly benefitting from his week away.''

  9. In March 1991 CD was assessed by an educational psychologist who reported:

    ``[CD] now seems to see St William's in a very positive light. He was unable to recall anything he disliked about the establishment and envisages remaining there until his 18th birthday.''

  10. The file maintained by South Tyneside MBC (which had statutory responsibility for CD) recorded in August 1991:

    ``His Key Worker is Cathy Burke who offers [CD] a consistent and thoughtful approach to him personally. He has a trusting relationship with her and often if there are areas of anxiety on [CD's] behalf, he can express these to Cathy.''

  11. By 1993 suspicions about Brother James' behaviour had begun to surface. CD was interviewed by the police, but did not mention any sexual misconduct. His key worker (whose name has been redacted) recorded that he was quite upset about ``criminal charges brought against adults he knew and cared for.''

  12. CD attained his majority in January 1996. In 2003 he was once again interviewed by police about his time at St William's. The statement is a short one in which he said:

    ``I do not have any complaints in respect of any form of abuse whilst I was resident, against any member of staff or other resident.''

  13. In 2005 CD was contacted by a solicitor. Group litigation against the defendants was begun by claim form issued on 18 January 2006. The claim form alleged in very general terms that the claimants claimed:

    ``Damages for injuries sustained as a result of abusive behaviour whilst the claimants were in the care of the Defendants at the St William's residential Children's home as minors.''

  14. On 5 September 2006 HH Judge Hawkesworth QC made a case management order in the litigation providing for a Group Litigation Order. Paragraph 16 of that order required the lead solicitors to serve a master Particulars of Claim with 28 days of receipt of the approved GLO. Those were to contain general allegations relating to all claims, and a schedule containing entries for each individual claimant stating which of the general allegations they relied on and ``(if appropriate) any specific facts relevant to the claim.'' We have not seen any evidence that that direction was obeyed.

  15. The vicarious liability of the defendants was hotly contested; and was dealt with as a preliminary issue. It was not until the Supreme Court gave judgment on 21 November 2010 (Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] AC 1) that that issue was finally resolved in the claimants' favour.

  16. While the preliminary issue was proceeding, on 21 July 2006 CD was interviewed by Mrs Richardson, a psychotherapist instructed by his solicitors. She recorded the ``Facts relating to the alleged abuse suffered''. She recorded a number of allegations of slapping and hitting. She also recorded that:

    ``3.3.4 [CD] told me that when allegations of sexual abuse at St William's by Brother James ... came to light, he did not feel surprised since it made sense of things he had seen and experienced e.g. Brother James coming to the bedroom at a holiday location and removing one of the boys.

    3.3.5 [CD] told me that he now feels bad about being covertly exploited in the above ways, although he was not aware of it at the time. As far as he can recall, he was never the subject of any overt sexual behaviour at St William's and considers that he may have had a ``lucky escape''.''

  17. In that interview CD did not say...

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