The question of whether a limitation defence may defeat a claim for abuse many years ago has been considered by the Court in its recent judgment in Dunn v Durham County Council, the judgment in which was handed down on 25 October 2019.
A long-running and well-known case, this matter had been considered by the Court of Appeal in 2012 in relation to whether the names of and information relating to third parties should be disclosed if of relevance to the issues in a case as part of the duties of disclosure provided by the Civil Procedure Rules.
The claim related to physical abuse alleged to have been suffered by the Claimant in the early 1980s. The Claimant’s representatives sent a letter of claim in 2007 alleging abuse by two individuals and issued proceedings in 2011, the proceedings making allegations of abuse against two more members of staff.
The Defendant conceded that it was vicariously liable for any assaults proven against its employees, but defended the claim on the basis that it was statute barred, put the Claimant to proof as to the assaults alleged and disputed the causation of psychological injuries alleged.
Whilst the employees named in the proceedings remained available to give evidence, denying assaults and provocation and asserting that the techniques of restraint used were viewed as suitable at the time, the judge was concerned at the passage of time (for which no explanation was given) before proceedings were issued and the impact of delay on the cogency of the evidence of the witnesses.
Taking into account the difficulty in assessing what was acceptable practice over 30 year ago, the judge found that the prejudice suffered by the Defendant as a consequence of the Claimant’s delay prevented a fair trial; the judge refused to exercise his discretion (provided by s.33 of the Limitation Act 1980) and the abuse claim was dismissed as it was statute-barred.
Whilst there are many abuse cases in which Claimants are allowed to pursue historic claims many years after the events alleged to have taken place, limitation remains a defence available to Defendants which should be raised in appropriate cases in order to defend abuse claims.
Limitation is, of course, under review by the Independent Inquiry IICSA.