Historical sexual abuse claims – limitation risks in out of time claims (Part Two)

In this second blog on the particular challenges posed by limitation periods in historical sexual abuse claims, James Counsell QC and Joshua Cainer focus on the second key live issue under section 33(3)(b), namely the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the parties is or is likely to be less cogent than if the action had been brought in time.

The first blog can be found here. 

In the first of two recent blogs on the particular challenges posed by limitation periods in historical sexual abuse claims, James Counsell QC and Joshua Cainer considered how historical sexual abuse claims are often brought long after primary limitation has expired, in which case the main recourse for claimants will be to ask the court to exercise its discretion, under section 33 of the Limitation Act 1980, to disapply the limitation period. In their first blog, they focused on the first of the two most important live issues that feature in courts’ decisions on section 33, namely the length of, and reasons for, the delay by the claimant under section 33(3)(a). The first blog can be read here. In this second blog, they focus on the second key live issue under section 33(3)(b), namely the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the parties is or is likely to be less cogent than if the action had been brought in time.

Section 33(3)(b) – cogency of the evidence

In respect of the second key live issue of evidential cogency, DSN v Blackpool Football Club [2020] EWHC 595 (QB), a case we looked at in our last blog, helpfully illustrates the way judges will approach potential prejudice caused by delay (at [48]-[60]). Griffiths J stressed that it was important to identify: (1) the nature and scope of the disputed factual issues; (2) the identifiable witnesses of the live factual issues and how many there are; (3) whether there was support from the corroborating evidence of other witnesses; (4) the quality, cogency and credibility of their evidence, especially having regard to their age, health and ability to recollect due to the passage of time; (5) what would have been the likely content and quality of testimony from unavailable witnesses, a category which will often include the abuser; (6) whether earlier proceedings would have provided the opportunity to hear from any relevant witnesses who would have altered the effect of the evidence, but who are now unavailable due to the passage of time; and (7) the quantity and quality of documentary evidence, and the likely relevance and weight of any missing documentary evidence having regard to the nature and scope of the factual issues.

The Judge also made clear (at [66]) that defendants are unable to argue as a “trump card” the claim’s relatively small financial value.  Whilst this may be relevant if limitation is being decided in advance of a trial, this argument has less force when the judge is considering limitation and the substantive merits at the same time. In any case, Griffiths J emphasised (at [66]-[67]) that, in DSN’s case, as in many sexual abuse cases, the claim had been brought for reasons of vindication, accountability and institutional lesson-learning and money was less of a factor.

Having regard to all of these factors, Griffiths J was satisfied that, although witnesses had died, including Roper himself as well as the club’s youth coach, their evidence would not have contradicted the evidence which he had heard. He described the claimant’s account as “cogent, circumstantial and convincing” (at [49]) and he heard from a large number of witnesses involved with the club at the time, as well as many others who had either been abused or had been young players who had escaped Roper’s attentions. In such circumstances, there was no real possibility of significant prejudice (at [60]).

A case in which a similar outcome was reached is BXB v Trustees of the Watchtower Bible and Tract Society [2020] EWHC 156 (QB), [2020] 4 WLR 42 , in which the court was considering the Jehovah’s Witnesses’ liability for one of their elders. The claimant, a member of a Jehovah’s Witnesses congregation and then aged 29, was raped by one of its elders after a morning’s door-to-door evangelising, together with their spouses. The claimant issued her claim against the defendant alleging, among other things, that it was vicariously liable for the elder’s rape, more than 24 years after the expiry of the primary limitation period. In that case, one of the essential facts was that the abuser’s father, also an elder, had, prior to the rape, instructed the claimant to provide his son with moral support at a time when it was thought that the son’s mental health was fragile, and it was in the course of the claimant providing that support that the abuser had raped her. One of the core issues was, therefore, the extent to which the rape was closely connected to the abuser’s and his father’s status as elders for the purposes of proving the defendant’s vicarious liability for the rape.

On the issue of limitation, Chamberlain J considered (at [125]) that the principal area of factual dispute for the vicarious liability claim was the extent to which the abuser and his father’s positions as elders played a part in the sexual abuse, which, itself, was admitted. Chamberlain J found the claimant’s evidence, in its essentials, to be credible – certainly, it was not “so inconsistent as to be obviously unreliable” (at [128]). Given Chamberlain J’s view (at [125]) that direct evidence on this matter could only ever have come from a very few witnesses other than the claimant, and that there was nothing to indicate that the defendants had ever sought evidence from those witnesses other than the claimant, he concluded (at [129]) that extending time would not cause significant prejudice to the defendants.

When contrasted with DSN and BXB, another recent case, EXE v The Governors of the Royal Naval School [2020] EWHC 596 (QB), provides a useful reminder that ultimately a claim often comes down to the credibility of the witnesses and, in particular, of the claimant. In EXE a kitchen porter employed by the defendant’s school engaged in a sexual relationship with the claimant, who was a 14-year-old student enrolled at the school. The claimant issued her claim against the defendant alleging, among other things, that the kitchen porter had sexually abused her, for which the defendant was vicarious liable, 24 years after the primary limitation period had expired. Griffiths J was unable to accept the claimant’s evidence, not because she was untruthful but because her memory could not be said to be reliable enough when contrasted with other evidence from contemporaneous documentary sources and from other witnesses, including her father and sister, who gave evidence at trial. He found her evidence not to be cogent, partly caused by the passage of time (at [68]). He concluded (at [72]-[73]) that this created very significant prejudice to both sides such that, overall, there was a real possibility of significant prejudice. He therefore declined to disapply the limitation period. Griffiths J’s refusal to accept the reliability of the claimant’s account in EXE inevitably coloured his conclusions on all of the issues. He did not find vicarious liability established and held that the relationship had indeed been a consensual one, despite the age disparity between the claimant and the kitchen porter (at [14] and [30]).

Another very recent decision to similar effect, and for similar reasons, is FXF v Ampleforth Abbey Trustees [2020] EWHC 791 (QB), in which the claimant, who was born in January 1964, alleged that the assistant parish priest of her family’s local church abused her during visits to her family’s home on multiple occasions between 1968 and 1969, when she was aged between four and six years old. The claimant issued her claim against the defendants alleging both vicarious liability and breach of a primary duty of care in negligence more than 32 years after the expiry of the primary limitation period. Lambert J noted that the claim was largely dependent upon the claimant’s memory of events which occurred 50 years previously when she was a young child and, as such, for whatever reason, her memory was limited, there were very large gaps in her recall and her evidence was obviously deficient because she was only able to give a partial account about what happened to her (at [60] and [82]-[83]). Similarly to EXE, Lambert J did not deny that the claimant gave an honest account of what she genuinely believed had taken place when she was a small child, but certain inconsistencies in the claimant’s account gave rise to serious questions as to her reliability and accuracy (at [57], [62] and [64]). This made the existence of written contemporaneous corroborative evidence to buttress her account all the more important, but there was no such evidence available in this case (at [61], [64] and [83]). Crucially, and by contrast with DSN, Lambert J rejected the claimants’ argument that the priest’s death made no difference, on the basis that, whilst he had a case to answer, the claimant’s case against him was not an unanswerable case by any means (at [84]-[85]). As such, Lambert J held that, as a direct consequence of the delay in bringing these proceedings, the cogency of the evidence had been substantially diminished due to the priest’s death, resulting in real and substantial evidential prejudice to the defendants (at [85]-[87]). It was also held that the reasons for the delay, principally the inhibiting effects  of shame and embarrassment which were considered not to be “psychiatrically disabling”, did not qualify or temper the substantial prejudicial effect of the delay on the defendants’ ability to defend the claim (at [96]and [99]-[100]). Lambert J went on to decline to disapply the limitation period because a fair trial was not now possible (at [106]-[107]).

General points about cogency of the evidence and “similar fact evidence”

One further point that is evident from these cases is that lawyers must be cautious about relying too heavily upon “similar fact evidence” in order to corroborate the claimant’s case. In FXF, the claimant sought to rely on evidence that her sister and other girls were also abused by the priest as children (at [65]-[70]), in order to “make good the short-fall in her own recall” (at [68]). However, only the claimant’s sister and one other woman gave evidence and the sister’s evidence was considered to be inconsistent and unsatisfactory (at [65]-[68]). All of the other evidence of abuse allegations consisted of second-hand hearsay  evidence which contained “strikingly different” descriptions of the nature of the abuse alleged against the priest (at [69]). This meant that, taken together and at its highest, the evidence supported the reliability of the claimant’s account only to the extent that it suggested that the priest was a paedophile – more broadly, however, Lambert J considered it only of limited weight (at [70]) such that it did not remedy the diminution in evidential cogency. This contrasts with Griffiths’ J’s reliance on what was also essentially “similar fact evidence” in DSN. In that case, he considered that an important factor to be weighed against the deaths of two key witnesses, including Roper, was the fact that a “remarkable number of witnesses … gave a great deal of evidence … which proved to be strikingly consistent and cogent” such that Griffiths J did not think that the two witnesses “even if they had contradicted this evidence … would have been able to prevail as lone voices against it” (at [50]).

There are three key distinctions between these cases. First, Griffiths J in DSN only referred to similar fact evidence in respect of determining whether the factual context justified a finding of vicarious liability, and not the separate issue of whether the abuse had occurred as a matter of fact (at [49]-[50]), which is what the claimant attempted to do in FXF. This shows the limitations in the probative value of similar fact evidence to the factual issue of whether the abuse occurred. Secondly, as we have already seen, Griffiths J was more impressed by the reliability of the claimant’s evidence in DSN than Lambert J was in FXF – ultimately, on the factual issue of whether the abuse occurred, it is the contemporaneous evidence relating to those specific events which will weigh most heavily in the balance. Finally, Griffiths J had the opportunity to hear oral evidence from a number of witnesses who made similar allegations of abuse against them that occurred within a similar factual context and whose evidence he found to be reliable. By contrast, most of the similar fact evidence in FXF was second-hand hearsay evidence, or otherwise not as impressive or wide-ranging as the evidence in DSN. Thus, the nature and quality of similar fact evidence will also be an important consideration for lawyers acting in these cases.

Conclusion

As both of our blogs have attempted to show, all of the recent cases demonstrate that the challenges posed by limitation in historical sexual abuse claims can be mitigated significantly by narrowing the disputed issues, gathering a range of corroborative witnesses, and emphasising contemporaneous documentary evidence. Those acting for claimants must ensure that everything is done, prior to exchange of witness statements, to identify and correct any potential inconsistencies with the contemporaneous documentary evidence, such as medical records and also with other witness statements, in order to make sure that the claimant’s credibility is not needlessly harmed.

Ultimately, however, whilst lawyers can prepare and case manage litigation to maximise the chances of success, limitation will often hinge on witness credibility – a factor largely lying outside a lawyer’s control. For such a sensitive and important category of cases as sexual abuse claims to be particularly susceptible to limitation defences suggests that this area needs reform. Whether reform will be forthcoming, however, only time will tell.

About the Authors

James Counsell QC specialises in acting for victims of historical sexual abuse and is a leading authority on this subject. James is currently instructed in cases against football clubs and other sporting bodies, religious and educational organisations and the Scout Association.

Joshua Cainer joined Chambers in 2020 following the successful completion of his pupillage and is happy to accept instructions across all of Chambers’ areas of practice. Joshua assisted James Counsell QC (as a pupil) in EXE v The Governors of The Royal Naval School, an historical child sexual abuse claim against a school involving issues of vicarious liability and primary duties of care in negligence.

Legal Blogs 20 Jan, 2021