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Court refuses to extend limitation period in historical abuse case

  • 23 April 2020 23 April 2020
  • UK & Europe

  • Insurance & Reinsurance

The High Court has found that allowing the Claimant to pursue her claim 32 years after expiry of the limitation period would result in substantial prejudice to the Defendant and the prospect of a fair trial, given that the accused priest had died and the cogency of evidence had been substantially diminished.

Court refuses to extend limitation period in historical abuse case

FXF v Ampleforth Abbey Trustees [2020] EWHC 791 (QB)

Background

The Claimant alleged she had been abused by a priest in 1968 or 1969 when she was around five years old.

It was alleged the abuse took place on numerous occasions when the priest visited the Claimant's home address, and ended when the Claimant's mother and grandmother witnessed it. The Claimant's case was that her mother reported the abuse to the church and as a consequence the priest was removed from the parish. The Defendant had no records of any complaints against the priest before his death, and the Claimant's mother died in 2004 and could not give evidence on this point.

Limitation

The priest died in 1990 but the Claimant did not issue proceedings until 2017, alleging mental illness and distress as a result of the abuse she suffered. The Defendant denied negligence but admitted vicarious liability for any of the priest's acts that the Claimant proved had been committed. Given proceedings were not issued until 32 years after limitation had expired, the Defendant advanced a limitation defence.

As limitation had expired the Claimant required the court's discretion under Section 33 of the Limitation Act 1980 to disapply limitation so she could pursue the claim. She argued that her evidence provided the court with "cogent and compelling evidence" that she was sexually abused. Further, even though the priest had died and could not give evidence for the defence, the Defendant had not been prejudiced by his death.

The Defendant argued that the claim was statute barred, and that the court should not exercise its discretion to allow the claim to proceed because the priest's death meant they were significantly prejudiced.

Outcome

The court acknowledged that there were a number of different reasons for the Claimant's delay in bringing her claim but the delay had seriously prejudiced the prospect of there being a fair trial. As the priest was deceased the Defendant could not advance a positive case in respect of the allegations. The court had to consider the evidence that might have been available to the Defendant if the trial had taken place earlier or it had learned of the case earlier.

The Claimant's submission that the priest's death caused no prejudice to the Defendant because she was a reliable and straightforward witness, and even if the priest could have given evidence hers would be preferred, was not accepted by the judge. Whilst the Claimant's account appeared to be genuine and based upon her honest belief of what had happened, an "honest belief can still be a mistaken belief." Furthermore, the judge agreed with the Defendant's submission that if the priest had been alive he would have had a case to answer to, but this would not have been an unanswerable case.

The Claimant's delay in issuing proceedings was found by the judge to be "very long indeed". The Claimant admitted she had always known that what had happened to her "was both wrong and immoral". She had first consulted solicitors in 2013 but then decided to not pursue her case. The judge agreed with the Defendant's submission that the Claimant was never "psychologically disabled from bringing the claim". On balance, the delay did not "qualify or temper the prejudicial effect of the delay on the Defendants' ability to defend the claim".

The Claimant's case was dismissed. The judge stated that "it would not be equitable" for her to disapply limitation as a fair trial would not be possible. The difficulties caused by the delay in bringing the claim outweighed the Claimant's reasons for delaying.

What can we learn?

  • Claimants will not always succeed in disapplying limitation in historical abuse cases. Cases are fact-specific and there are points that defendants can raise in relation to difficulties in defending cases where the accused perpetrator has died.

  • Whilst this matter turned on its own facts, it reiterates earlier case law that the reasons for a claimant's delay are significant when considering disapplying limitation.

  • The case follows Re v Ge [2015] EWCA Civ 287 when the court refused to exercise its discretion where the Claimant had inexplicably delayed for more than four years after being advised she could claim, despite the abuser still being alive.

  • A defendant's ability to rebut inconsistent evidence from a claimant, with further witness evidence of their own, is fundamental to ensuring there is no prejudice. This is particularly important where those further witnesses may be able to provide evidence consistent with contemporaneous documentation.

  • Whilst historical abuse cases need to be handled sensitively by defendants and their representatives, defendants should always investigate fully and consider whether it is appropriate to advance a limitation defence.

End

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