The question of whether a claim for damages for sexual abuse was statute-barred was considered by the Court of Appeal in Catholic Child Welfare Society and others v CD, in a judgment handed down on 23 October 2018. Should the Court allow a Claimant to raise new allegations some years after the commencement of proceedings? What period should the Court consider when deciding whether to exercise its discretion to allow a claim to be pursued?
The Claimant was one of a number of former students of the Defendant who alleged that they had been physically abused by the Defendant's staff in group litigation proceedings commenced in 2006. The Supreme Court decided, in 2012, that the Defendant was vicariously liable for the actions of the staff. In 2007 the Claimant alleged physical abuse only (and referred to other students being sexually abused). However, in 2014 the Claimant raised for the first time allegations that he had been sexually abused by one of the staff on a residential trip in 1990. The limitation period in relation to the new allegation had expired in 1999, on the Claimant's twenty-first birthday.
The question of whether the Claimant should be allowed to amend his claim to add the allegations of sexual abuse was considered by the Court. The purpose of the Limitation Act is to protect Defendants from the injustice of having to fight stale claims, especially when the Defendants are unable to rely on evidence from witnesses or documents which would have been available at an earlier point in time; the Court was required to consider whether, having commenced proceedings in 2006, the Claimant should be allowed to amend his case years later to raise new allegations to which the Defendant had not previously been alerted.
The passage of time meant that the Defendant was unable to obtain witness evidence from a number of key individuals, including the residential social worker responsible for the Claimant. The alleged perpetrator of the abuse was able to give evidence (he had been convicted of sexually assaulting other students, but not the Claimant, in 2015). The new evidence of the Claimant was uncorroborated and, in the opinion of the expert psychiatrist instructed on behalf of the Defendant, there were questions over whether it was based on a false memory or false allegation (this was not agreed by the expert instructed on behalf of the Claimant).
The Court of Appeal decided that, taking into account all the circumstances of the case which included the delay of 8 years between the commencement of the group litigation and the first raising of the allegation of rape in the Claimant's Individual Statement of Particulars, the prejudice suffered by the Defendant was so great that the Court should not exercise its discretion to disapply the limitation period. As a consequence, the Claimant's claim in relation to the allegation of rape was statute-barred and, contrary to the decision of the Court below, the Claimant was not permitted to pursue his claim.
This judgment is of benefit to Defendants as it should restrict the ability of Claimants to make significant changes to their case. Whilst the limitation period had expired in 1999 and proceedings had been issued in 2006, the commencement of proceedings did not prevent the Court taking into account the entirety of the period from the alleged incident to the raising of the new allegation.