The Court of Appeal has today handed down its ruling in the case of JL -v- (1) Archbishop Michael George Bowen (2) Scout Association [2017] EWCA Civ 82 in which we acted on behalf of the first defendant, Archbishop Bowen. The judgment sets out the way in which the courts should consider limitation and the exercise of its discretion in a case where the primary issue (apart from limitation) was consent. In particular, the Court of Appeal provided guidance as to the way in which the courts should apply limitation when a trial judge has reached factual adverse findings and/or conclusions in respect of a claimant.

Background

The claimant alleged that he had been sexually abused by FL, a former scout chaplain and Catholic priest, between about 1984 and 1999. In August 2000 FL pleaded guilty to eight counts of indecently assaulting three males, all over the age of 16, and was sentenced to two years’ imprisonment. Five of the counts related to the claimant and related to incidents which had taken place during a lengthy period of over 15 years when the claimant was between 16 ½ and 31 years old.

In 2011 the claimant commenced a civil claim for compensation against both the Scout Association and the Archbishop (against whom no personal fault or culpability was alleged) during the period to which the claimant’s allegations related. The sum claimed was in excess of £500,000 and included compensation for the assaults themselves, treatment costs and an extensive claim for past and future loss of earnings. In April 2014, a year before the matter ultimately came to trial, FL died.

Following the trial in March 2015, but before the draft judgment had been sent to the parties, the claimant wrote a letter directly to the trial judge in which he sought to correct part of his evidence. On the first day of the trial the claimant had asserted that he had never seen his own psychiatric report until recently before the trial. This was despite references to this report appearing in the claimant’s witness statement, which he had signed a year earlier. In his letter to the judge, the claimant admitted that he had in fact seen the report and commented on it. The defendants sought to have the trial re-opened for the claimant to be re-examined on this issue, but the judge refused on the basis that he ‘did not view the matter as being of great significance’.

The trial judge then found in favour of the claimant on a limited basis. The judge found the claimant to be a credible witness and on the whole truthful, albeit that he had a tendency to embellish and exaggerate his evidence. He disapplied the limitation period and held that both defendants were jointly vicariously liable. He awarded the claimant damages of £20,000. The claims for past and future loss of earnings and treatment costs were dismissed in their entirety. The judge limited the damages to the assaults which he found had taken place during a three year period from September 1984 (when the claimant was almost 17) to July 1987 (when the claimant was 18½ years old). This was despite the fact there were relevant convictions for indecent assault of the claimant to August 1999 when he was 31 years old.

Grounds of appeal

Both defendants were granted permission to appeal by the trial judge on the issues of consent and vicarious liability. The Archbishop also sought permission to appeal on the issues of limitation, credibility and the trial judge’s refusal to re-open the trial in the light of the claimant’s letter sent to the judge. Permission to appeal was refused on those three issues by the trial judge, but permission was subsequently granted on paper by LJ Tomlinson. Despite not having made an application to the trial judge, the Scout Association eventually joined the Archbishop in applying to the Court of Appeal for permission to appeal the issue of limitation, and thereafter sought permission to appeal on credibility and the refusal to re-open the trial after the Archbishop had already been granted permission to do so.

Court of Appeal judgment

In the lead judgment, LJ Burnett (with which LJ Lewison and the Senior President of Tribunals, Sir Ernest Ryder, agreed) allowed the defendants’ appeal and dismissed the claimant’s claim in full.

In particular, whilst recognising that an appellate court should be slow to interfere with the exercise of a trial judge’s discretion, the Court of Appeal concluded that the trial judge was wrong to have disapplied the limitation period. Consequently, the Court of Appeal did not need to consider the other grounds of appeal.

In the Court of Appeal’s view, when the trial judge rejected the claimant’s claim for almost the entirety of the period of alleged abuse and made adverse findings against the claimant, he failed to appreciate the significance of these factual findings when determining the length of the claimant’s delay in pursuing the claim, his reasons for that delay and the prejudiced suffered by the defendants in having to defend the claim.

In considering the resultant effect of this error on the judge’s conclusions on limitation, the Court of Appeal analysed the following specific factors:

Credibility

  • The judge’s analysis was largely based solely upon the claimant’s account of events and an overall assessment of the claimant’s reliability. The judge recognised the claimant had been deliberately misleading in descriptions he had given in his business life; had a tendency to inaccuracy and overstatement; had misled treating counsellors and medical experts by saying the abuse began when he was 13 and had understated the frequency of his visits to FL when he was an adult. The judge also rejected the claimant’s assertions that his personal and business difficulties were as a result of abuse by FL. These factors should have weighed heavily when considering the exercise of discretion.

Length of delay

  • The judge found that the last non-consensual contact between the claimant and FL took place in July 1987 when the claimant was almost 19 years old, and any contact between them thereafter was entirely consensual. However, the judge found the claimant’s delay in pursuing his claim was between nine years (this being three years from the date of the last assault to which FL pleaded guilty in 1999) and 23 years (from the date of the expiry of the claimant’s limitation period on his 21st birthday). On the judge’s findings as to when the last non-consensual contact took place, the length of the delay was right at the far end of that bracket, between 21 and 23 years.

Reasons for delay

  • The Court of Appeal recognised that there are cases where psychological harm is a reason why a claim is not brought sooner, but this was not such a case. The Court of Appeal considered that the reason for the claimant’s delay up until 1999 when he complained to the police was because he believed he was in a unique relationship with FL. However, when he realised that his relationship with FL was not unique and was even willing to give evidence against FL at the criminal trial, he made a choice not to bring civil proceedings.

Impact of delay – prejudice and consent

  • The judge accepted that this delay would also have adversely affected the cogency of the evidence. The central issue was the nature of the relationship between the claimant and FL before the first occasion of sexual contact and the extent to which it had affected the claimant’s ability to give real consent. However, the judge accepted that detailed evidence on this issue would have been affected even if FL were alive, but FL’s death had compounded the prejudice caused to the defendants.
  • Further, whilst the fact of sexual touching was not in issue, the judge found that the defendants had in fact discharged the burden in proving that the sexual touching was consensual throughout the claimant’s adulthood. The Court of Appeal therefore considered consent to be the live issue and the circumstances of each event would have been highly relevant to the question as to whether each event was consensual. The absence of FL was highly prejudicial to the defendants.

In view of the above, the Court of Appeal considered that the judge’s overall assessment of the claimant and his adverse findings should have resulted in him determining the issue of limitation against the claimant. In particular, the judge’s findings should have resulted in the identification of a more significant period of delay (21 to 23 years) on the part of the claimant; that the claimant did not have a good reason for this delay and that the defendants were significantly prejudiced by this delay, particularly on the central issue of consent with which the defendant had to discharge the burden of proof.

Comment

This judgment is further guidance on the way in which courts should approach limitation in abuse claims. In cases where limitation is in issue and being dealt with along all other issues at a full trial, the authorities demonstrate that courts should not attempt to consider the issue of limitation before making an assessment as to the claimant’s evidence and facts of the case. As Lewison LJ stated in very stark terms, in this case there was an ‘Alice in Wonderland’ quality to the court disapplying the limitation period on the basis of a view of facts which was actually far removed from the facts that it had determined. This case demonstrates the illogicality of disregarding adverse factual findings in respect of the claimant which are then directly relevant to the question of the exercise of the court’s discretion.

The judgment is also another example of the court’s recognition and acceptance of the difficulties defendants face in investigating non-recent claims and being required to prove negatives so many years after the alleged events. This is even so in circumstances where the factual issue is not the occurrence of the sexual activity, but the context and circumstances giving rise to that activity and, ultimately, whether the events in question were consensual. As the Court of Appeal stated in this case, consent is a live issue in many criminal cases but juries often have the benefit of, and ordinarily need, both sides of the story to make the necessary judgments. This was not possible in this case and the difficulties for defendants can be acute when the court has only a claimant’s evidence upon which to make its assessment and the honesty, reliability and consistency of a claimant is justifiably in question.