AB, CD, EF, GH & IJ –v- The Catholic Child Welfare Society & others [2016] EWHC

The High Court has handed down its judgments in five test claims brought as part of an historical child abuse group action in which Hill Dickinson represented the defendants.

The Court refused to exercise its discretion under the Limitation Act 1980 in two of the cases and dismissed a further two cases due to poor credibility and inconsistencies in the evidence. The Court decided to exercise discretion in favour of only one of the claimants.

Kari Hansen, partner in the abuse and social care team, considers how the Court approached limitation in reaching its decisions.

Background

The five claimants issued civil claims for compensation between 2005 and 2007. The allegations related to physical and sexual abuse which occurred in a school run and managed by the defendants between 1973 and 1991. It was common ground that the limitation period expired in all of the cases a considerable time before proceedings were issued. The judge was asked to exercise his section 33 discretion to allow the claims to proceed outside of limitation.

Both parties made generic submissions which applied to all five cases.

The defendants’ submissions

The defendants pointed out that there is a tension between the Court deciding on the reasons for the delay in issuing proceedings without actually making a finding of fact as to whether the abuse had occurred. The defendants highlighted that the lack of contemporaneous documentation in many cases was a serious prejudice and drew distinctions between the documents available in some of the claims that did not exist in others due to the added passage of time. The defendants submitted that as the school had closed in 1992 it was fanciful to expect them to have retained all relevant documents when the first claims were not intimated until 2005.

The claimants’ submissions

The claimants recognised that there may be missing documents but asserted that, if they had been available, those documents would not assist the Court in deciding whether the abuse took place because that fact would never have been recorded.

The claimants also contended that there was moral culpability on the defendants as the school had a moral and legal duty to protect vulnerable young children. It was submitted that the defendants, as the organisations managing the school, should have been aware from information in their possession in the 1970s and 1980s that children were at risk and that this should be considered relevant for the purposes of section 33.

The trial took place before HHJ Gosnell in November 2016 in the High Court in Leeds.

Judgments

HHJ Gosnell handed down individual judgments in each of the five claims.

He dismissed two of the claims (AB and EF), where there had been a delay of 25 and 29 years respectively. In AB, he found that there was clear evidential prejudice to the defendants due to the passage of time. In EF, he relied upon concerns regarding the cogency of the claimant’s evidence, lack of documentation and the reason for the delay.

HHJ Gosnell exercised discretion in favour of the remaining three claimants, where the delay in issuing proceedings ranged from 7–14 years. These were claims in which there was voluminous contemporaneous documentation and witnesses were available. However, having allowed the claims to proceed, he found in favour of only one of the claimants, CD, on the facts. The remaining two cases (GH and IJ) were dismissed due to poor credibility and inconsistencies.

In reaching his conclusions, HHJ Gosnell specifically addressed the issue of moral culpability. Whilst accepting that there was no doubt that the perpetrators were morally culpable and that questions could be asked about the investigations made prior to any police involvement, HHJ Gosnell did not accept that they should weigh significantly in the claimants’ favour. He concluded that if they did, it would be difficult to see how a defendant could ever succeed on limitation when attempting to defend an allegation of child sexual abuse. Irrespective of contentions of moral culpability, any delay must be explained.

Conclusion

The judgments show the difficulties for the Court as well as the parties in historical cases of sexual abuse. They reinforce the importance of contemporaneous documentation, not only in dealing with the issue of limitation, but also when considering the fact of the abuse. The judgments also highlight that even where there is moral culpability a claimant does not automatically avoid the hurdles of section 33.

It is not presently known whether any of these decisions will be the subject of appeal.