A Court of Appeal view on limitation in abuse claims
RE v GE
Court of Appeal
27 March 2015
The Court of Appeal has recently handed down a judgment on the issue of limitation in an abuse claim. Whilst not a new issue, it is one that is likely to become increasingly relevant at a time when historical allegations of abuse are under intense scrutiny. Andrea Ward and Joanne Kingsland explain the development of law on limitation in abuse claims and consider the implications of this new decision. RE v GE (2015).
In January 2008 the House of Lords made a ground-breaking decision in the case of A v Hoare which changed the way that limitation applied in historic abuse cases. Prior to that decision, all cases involving allegations of physical and sexual assault had to be brought within a strict, non-extendable, six year time period as constituting trespass to the person.
We represented one of the defendants in Hoare where it was determined that s.11 Limitation Act 1980 applied in cases of abuse involving a personal injury. This meant that cases should be brought within three years of the cause of action or of the claimant reaching his or her majority, whichever is later. It also meant that s.33 applied, permitting a discretionary extension of the limitation period.
The House of Lords judgment paved the way for cases to be brought long after the event if limitation was extended. For most of our clients this meant that they would be facing very old claims in vicarious liability for alleged abuse by former employees carried out in the course of their employment or in situations closely connected to that employment. Some of the claims we have dealt with go back as far as the 1950s.
Subsequent cases of B v Nugent Care Society (2009) CA and Raggett v Society of Jesus (2010) CA placed particular importance on whether a fair trial was possible taking into account the presence or absence of key witnesses. As a result, defendants now rarely apply for limitation to be dealt with as a preliminary issue.
At the end of March the Court of Appeal considered limitation again.
The claimant, RE, alleged that she had been sexually abused by her father, GE, when she was a child between 1974 and 1982. She had made complaints on a number of occasions throughout her life but did not issue a civil claim until September 2012, some 23 years after the primary limitation period had expired and more than four years after the change in the law.
First instance decision
Limitation was tried as a preliminary issue, the outcome of which was that the claimant was refused discretion to bring her claim out of time.
In giving judgment His Honour Judge Harris QC referred to previous decisions in which it was confirmed that the burden was on a claimant to establish the criteria set out in s.33 and that exercise of such discretion in favour of a claimant would be an exceptional indulgence.
Whilst it was noted that the claimant’s father was available to answer to the allegations, the judge found that the claimant’s date of knowledge was as long ago as 1986 and was concerned that there had not been an adequate explanation given for bringing proceedings so long after the event and particularly since the change in the law in 2008. He concluded that the law relating to limitation could not simply be about the possibility of there being a fair trial. He specifically confirmed that: “A sound system of civil litigation must ensure that cases are both brought and litigated with reasonable expedition, thus the rules of limitation and the Civil Procedure Rules.” He went on to say that s.33 was there to cope with exceptional cases where there were understandable good reasons why it is equitable to allow a claimant to proceed out of time.
The claimant appealed.
Court of Appeal
The appeal was brought on five grounds:
The judge had applied the wrong test. Rather than asking whether it was fair for a defendant to face trial the question should be whether a fair trial of the claim and a defence to that claim was still possible.
The judge should have considered the balance of prejudice.
The judge failed to take proper notice of the reasons in the medical expert’s report for the claimant being deterred in bringing a claim.
The judge erred in finding that the reasons given for the delay were not adequate.
It was wrong to find that discretion should only be given in “exceptional circumstances".
Pitchford LJ, Lewison LJ and McCombe LJ dismissing the appeal held that the question of whether it was “equitable to allow the action to proceed” should be answered by having regard to all of the circumstances of the case including the particular factors picked out at s.33(3) of the Act. No one factor was more important than the others. In weighing up the factors the court should not forget “that the one relevant factor is the very existence of the limitation period which Parliament has decided is usually appropriate.”
The first instance judge had applied the right test in law and what followed, in terms of what he took into account in reaching his conclusion, was a matter of his discretion. He did weigh up the cogency of the evidence available on both sides and in doing so he took account of the balance of prejudice. He did not err in his concern about the lack of good reason for the delay and in particular the delay in both the claimant and her legal advisers progressing the case after 2008 when the primary limitation period had expired so long ago.
No application was made by the claimant to rely on the expert’s report so that this could not be taken into account.
In the circumstances it was found that the judge had been entitled to apply his discretion in the way that he did and to refuse permission for the claimant to proceed out of time.
The judgment is helpful for defendants who face allegations against former employees long after the event and often out of the blue. Often there will also be considerable delay in progressing claims after the claimants saying that they became aware of their right to bring an action.
How though does this sit with the current public scrutiny of historical allegations of abuse including: the police re-opening long closed cases of alleged abuse, some of which allegedly involve high profile figures; the Independent Panel into Child Sexual Abuse; and a general message that “victims should be believed”?
If a claimant does have medical evidence to support good reasons for the delay the court may find in the claimant’s favour. Therefore defendants will be scrutinising medical records and obtaining their own medical evidence with focus on the issue of exactly when the claimant became aware he or she could make a claim and the reasons for any delay.
An appeal to the Supreme Court would seem very likely.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.