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

In the first of two blogs, James Counsell QC and Joshua Cainer discuss the particular challenges posed by limitation periods in historical sexual abuse claims, and seek to identify, by reference to four very recent historical sexual abuse High Court judgments, the key considerations which courts take into account when determining whether such claims are barred by reason of expired limitation.

The second blog can be found here.

Key elements to success in historical sexual abuse claims

Sexual abuse claims often rely on vicarious liability as a cause of action. Whilst all claims relying upon vicarious liability have their difficulties, claimants in historical sexual abuse claims have unique challenges to overcome. To succeed, a claimant usually must overcome three hurdles: first, to establish that the two limbs of the test for vicarious liability are satisfied in circumstances where the relationship between the institution and the primary wrongdoer is frequently atypical; secondly, to persuade the court to permit the claim to proceed out of time, as such claims are often brought many years after primary limitation has expired; and, thirdly, to show that the psychiatric injuries suffered together with any other losses were the causative result of the abuse suffered many years ago at the hands of the primary wrongdoer.

There is also sometimes a fourth hurdle which should not be forgotten: whether the claimant can establish that they were not consenting to the primary wrongdoer’s conduct, such that it constitutes a trespass to the person.

These two blogs focus on the second of those hurdles, itself involving a number of  issues peculiar to historical sexual abuse claims.

General approach to case managing limitation and the trial on the merits

By their nature, historical sexual abuse claims are often brought long after primary limitation has expired. Although occasional issues relating to date of knowledge arise, 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 sexual abuse trials, the practice has developed in which trial judges consider both limitation and the claim’s substantive merits together (not least to avoid the prospect of claimants having to give evidence twice). In DSN v Blackpool Football Club [2020] EWHC 595 (QB), Griffiths J recently reiterated (at [62]-[63]) the importance of determining limitation first, before determining the substantive trial on the merits, when this practice is deployed. The most recent and authoritative summary of how to approach this can be found in London Borough of Haringey v FZO [2020] EWCA Civ 180 (at [54] and [94]-[108]), in which the Court of Appeal re-emphasised the “logical fallacy” of relying upon findings as to the merits of the case, on necessarily partial evidence, in order to determine whether it would be equitable to disapply the limitation period. Such an approach would overlook the possibility that, had the defendant been in a position to deploy evidence now lost to him, the outcome might have been different. However, concerns about the “logical fallacy” are more likely to apply in cases where a court proceeds from a finding that the claimant should succeed on the merits to the conclusion that it would be equitable to disapply the limitation period; they are less likely to apply in the reverse situation, especially when the case depends upon the reliability of the claimant. With that in mind, it is not “putting the cart before the horse” to hear the evidence and then make an overall assessment of the evidence before dealing with limitation – the correct approach is for the court to adopt an overall assessment of the evidence, which includes weighing up any adverse findings made against the claimant, and the effects of any delay on the cogency of the evidence . This is because it is not realistic to ignore findings and conclusions reached following a full trial. Instead, it is how such findings and conclusions are treated in the court’s limitation analysis that is crucial – provided that judges base their analysis under section 33 on the cogency of the evidence and the prejudice arising, as opposed to basing their analysis directly upon their findings as to the merits of the case, they will have acted correctly. The most practical way for litigation to proceed is for the parties to agree this structured approach in advance.

Section 33(3) sets out a non-exhaustive list of factors for the court to consider when deciding whether to extend time. In practice, there are usually two key live issues in these claims: (a) the length of, and reasons for, the delay by the claimant; and (b) 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 authorities also emphasise two additional overarching questions of critical importance: (1) whether there is a “real possibility of significant prejudice” by reason of the delay; and (2) whether it is possible to have a fair trial (DSN at [29]). This blog focuses on the first of these questions, whilst our next blog will focus on the second.

One final preliminary point is that where a claimant brings more than one cause of action, be that claims against multiple defendants or a claim involving both vicarious liability and primary duties of care in negligence, the court is required to consider exercising its section 33 discretion in respect of each cause of action separately (Murray v Devenish [2018] EWHC 1895 (QB) at [73(iv)]).

Section 33(3)(a) – length of, and reason for, the delay

DSN  is a good example of how the first key live issue operates at trial. The claimant had been abused in 1987 by a scout for Blackpool FC, Frank Roper. Although not employed by Blackpool, and acting in a voluntary, unpaid capacity, Roper provided a steady stream of young football talent to the club from a feeder club which he coached, whilst also abusing the young boys, aged between about 11 and 15, in his charge. The claimant, a 13-year-old boy, was abused whilst on a football tour to New Zealand.  The claimant issued his claim against the defendant alleging, among other things, that it was vicariously liable for Roper’s sexual abuse, 22 years after the primary limitation period had expired.

The claimant in that case relied upon all of the reasons which usually apply to explain the delay (at [42]): (1) the effect of the abuse on the claimant; (2) shame, embarrassment, disgust and what are common, albeit irrational, feelings of guilt; (3) threats made or instructions given by the abuser to keep quiet; (4) concern as to the reaction of family members and others, such as the police, to disclosure; (5) a fear at the time that the claimant would not be believed or would be ostracised or bullied, for example at school; (6) mental coping strategies of suppressing memories of the abuse (sometimes known as “compartmentalising”); and (7) the state of the claimant’s mental health.

Changing public perception is the key to the long delay in many historical sexual abuse cases and explains many recent disclosures. Part of the reason for the large number of claims now is not because claimants are jumping on the bandwagon, but because, post-Savile and, in football, after a number of high profile footballers publicly testified about their own experiences of abuse, survivors have come to realise, for the first time, that they would be believed and would receive a sympathetic reaction to disclosure. DSN  is of particular interest because it is the first of very many historical abuse claims against football clubs arising out of abuse committed in the 1980s and 90s by coaches such as Barry Bennell and Frank Roper and involving clubs such as Manchester City, Blackpool and Crewe Alexandra.

In DSN , having heard from the claimant, Griffiths J (at [42]) was satisfied that the claimant was “for practical purposes disabled from commencing proceedings” (referring to Lord Hoffmann’s phrase in A v Hoare [2008] UKHL 6, [2008] 1 AC 844 at [49]) until more than 30 years after the abuse. Griffiths J stressed that the claimant need not suffer from an actual psychiatric condition which prevented him from disclosing the abuse, although that could be a relevant consideration. Chamberlain J had made this same point in BXB v Trustees of the Watchtower Bible and Tract Society [2020] EWHC 156 (QB), [2020] 4 WLR 42 (at [130]) as part of his decision to disapply the limitation period in that case.

Conclusion

What the cases demonstrate, however, is that no matter how compelling the reasons relied upon by a claimant may be, this issue is always likely to take second place to loss of evidential cogency, especially where the claimant is not practically disabled from commencing proceedings. As we will see in the second of our blogs, the reasons relied upon for any delay serve generally to qualify or temper any diminution in evidential cogency that is caused by a lengthy delay. Our view is that, whilst the reasons for any delay will form an important part of the court’s decision-making, it is the evidential cogency factor, combined with any prejudice suffered, that is always likely to be the critical issue in the court’s analysis.

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 12 Jan, 2021