Limitation in sexual abuse cases: further Court of Appeal guidance
JL v Archbishop Michael George Bowen & The Scout Association Court of Appeal 22.2.17
Mark Fowles considers the recent judgment in JL -v- Archbishop Michael George Bowen and Scout Association  in which the Court of Appeal concluded that the trial judge had been wrong to disapply the limitation period. The judgment is helpful in reviewing the way in which the courts should approach limitation in abuse cases and specifically, the exercise of its discretion in a case where the primary issue was consent and where there had been adverse findings of fact against a claimant.
The English law of limitation has been problematic for half a century. Instead of an absolute ban (too late/no claim) as exists in some areas of English law, the law of personal injury perhaps because of its socially sensitive nature, is subject to the exercise of judicial discretion under section 33 of the Limitation Act 1980. "Hard cases make bad law" is an old saying and never more true than in this area. Judges faced with individuals who have suffered terrible injuries, mental or physical, tend to be broad in their use of that discretion. However, whilst English courts continue as places in which justice is to be delivered, rather than as tribunals for compensation, the Court of Appeal has, from time to time, whilst emphasising the discretion of the trial judge to be "broad and unfettered", nonetheless tried to cautiously rein in a too undisciplined approach by judges. There is some suggestion in the legal press that we are going through one of those periodic periods of judicial fashion in which it is harder for claimants in abuse cases to succeed in setting aside the time limit. Whether that is the case or not and whether that is a reaction to the vast number of abuse claims that we have seen in the last few years, it is too early to say. JL v The Archbishop Michael George Bowen & The Scout Association is however an interesting case in which the claimant was unsuccessful in the Court of Appeal.
In brief, the Claimant alleged that he was abused by a former Scout chaplain and Catholic priest between 1984 and 1987 when he was between 16 and 19 and thereafter from time to time until 1999. By then he had qualified as a solicitor and had subsequently ceased to practice, retraining in another career. Proceedings were begun in 2011. The priest died in 2014. The trial was in 2015. What was interesting about JL was the effect and importance of the conviction of the priest under section 15 of the Sexual Offences Act 1956. Ordinarily speaking, the existence of a conviction makes life very difficult for a defendant. As Lord Brown had reminded us in A v Hoare  UKHL, if there has been a conviction "the problems of investigating antique events may be of less consequence."
In this case, the conviction related to JL and there was no issue about that. Unfortunately, after the claim had been intimated, the nature of that conviction had not been appreciated. Under the Sexual Offences Act, consent was relevant from the age of 16 and not from the age of 21. The question of consent had therefore been potentially relevant to the conviction. The priest later said that he had only pleaded guilty to save himself a heavier sentence and the church embarrassment. In fact there was a potential defence, but beyond the Claimant's evidence, that issue could not now be investigated. However, even if the priest had still been alive, the delay would still have prejudiced the Defendant.
It should also be said that the Claimant's evidence had been much criticised by the Court below. His claim, put forward at £500,000 included compensation for the assaults, treatment costs and a claim for past and future loss of earnings. The judge had rejected by far the greater part of his claim - namely that his many working and private life problems had been the result of the priest's actions. In the end at trial, he received £20,000 for the assaults themselves. The judge at first instance permitted the Claimant to proceed notwithstanding the time bar but accepted that the arguments were finally balanced. He found that the Claimant's psychological state as a result of the assault explained the delay and that the inhibition had only disappeared when he had received therapy in 2009. The judge accepted that the delay had affected the cogency of the evidence – particularly the death of the priest – but in all the circumstances, having heard the evidence and having been told of the evidence that he could not hear, it was just and equitable for the claim to proceed.
Court of Appeal findings
The Court of Appeal (Burnett LJ giving the leading judgment and Lewison LJ and the Senior President of Tribunals, Sir Ernest Ryder agreeing) allowed the Defendants’ appeal and dismissed the Claimant’s claim. The Court took the view that when deciding the limitation question, the trial judge was wrong to have disapplied the limitation period, both in law and in his appreciation of the material facts:
Firstly, he had wrongly assessed the reason for the delay. This was not a case like A v Hoare where Lord Hoffman considered amongst the circumstances that a judge should consider, was the fact that the harm produced by the abuse provided the very reason why an earlier claim had not been brought. The judge in JL had rejected the Claimant's case for the later parts of his life on the basis that he had continued to believe in a relationship with the priest which was special and unique. Even when he realised that was not the case and although he had been willing to give evidence in the criminal case, he had still not wanted to bring proceedings. The fact that the later adult relationship had been consensual ought also to have "coloured" the approach of the judge. The Claimant had revered the priest and did not want to destroy what he believed to be a unique relationship. As the Court of Appeal put it, "the reason for delay during that period may not be as excusable as would be the case for psychological sequelae of an assault or assaults responsible…"
Secondly, in the ordinary run of cases, if there has been a conviction, as in A v Hoare, "the problems of investigating antique events may be of less consequence". This though, was not an ordinary case. The question of consent lay at the heart of it, and without the evidence of the priest, the Defendant had been highly prejudiced – particularly in the context of the unreliability of the Claimant's evidence.
A final point, the Court heard – as is often, although not inevitably the case - the issue of limitation was heard at the same time as the main trial. That can easily lead to what Lewison LJ called "an Alice in Wonderland" situation in which the judge has to hear and evaluate the evidence for one purpose, limitation, but not for another - liability. The trial judge had followed, quite literally, the words of Lord Clarke in the Court of Appeal in AB & Ors vNugent Care Society :
"…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 the delay on the cogency of the evidence. To do otherwise would, as the Court said, be to put the cart before the horse".
In JL, the judge, having rejected much of the Claimant's case and evidence tried to follow that guidance. Thus, the overall period of delay was, on the pleadings, between 9 and 23 years. On the case as it survived the Judge's findings, that reduced to between 21 and 23 years. In an important and authoritative gloss on Nugent, the Court of Appeal reaffirmed the approach of Thomas LJ in Raggett v The Governors of Preston Catholic College  – namely that the judge had to make "an overall assessment including the cogency of the evidence and the potential effect of the delay on it" . In JL, Burnett LJ and the rest of the Court took the view that "the findings and conclusions arising from (the judge's) rejection of the claim for the bulk of the period and, more generally, the adverse findings he made against JL were important in determining the length of the delay, the reasons for the delay and the extent of prejudice suffered by the (Defendants) in defending the claim".
It was simply unrealistic to take the guidance in Nugent as literally as the trial judge had – in doing so, Lewison LJ stated that there had been an "Alice In Wonderland quality about reading a judgment in which the limitation period was disapplied on the basis of a view of the facts that was far removed from the facts that the judge actually found."
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.