Can moral culpability be taken into account when assessing s33 discretion in an historic sexual abuse case?

By Sabrina Hartshorn

 

GH v (1)The Catholic Child Welfare Society (Diocese of Middlesbrough) (2) The Trustees of the Middlesbrough Diocesan Rescue Society and (3) Trustees of the De La Salle Provincialate 

Where the court was asked to consider whether the high level of moral culpability on the part of the perpetrators and Defendants should weigh significantly in the Claimant’s favour in a s33 limitation argument

A copy of the judgment can be found at:

http://www.bailii.org/ew/cases/EWHC/QB/2016/3337.html

 

Key Points

• The judge should not determine the substantive issues first before determining the issue of limitation and the effect of delay on the cogency of the evidence.
• The burden is on the Claimant to persuade the court to exercise its discretion to disapply the limitation period
• Whilst the delay was long (31years), a substantial part of that was not the fault of the Claimant and it was that delay which materially affected the ability of witnesses to give evidence
• Whilst the cogency of the evidence is likely to suffer due to the passage of time, the evidence in this case was fairly narrow. The Claimant was either sexually abused or he was not. The passage of time would not have affected the cogency of this evidence
• Moral culpability of the Defendants is not a factor to be taken into account in an assessment of s33 discretion
• Whilst proportionality is an argument that can be taken into account, such argument had little bite in a damages claim for sexual abuse
• On the facts of this case, the limitation period was disapplied and the action was allowed to proceed
• However the Claimant’s claim was dismissed as he failed to prove on a balance of probabilities that he was abused in the way he described

 

The Facts

The Claimant was one of 249 Claimants that formed part of a group action claiming damages for sexual and physical abuse whilst they were pupils at St Williams School in the East Riding of Yorkshire. Such abuse was allegedly committed by teachers or members of at St Williams School in the East Riding of Yorkshire. Boys were placed at the school if they had been convicted of a criminal offence or found to be in need of care or protection or they were not attending school regularly.

The group litigation order was made in September 2006 and preliminary issues as to the vicarious liability of the Defendants arose which were not decided until a Supreme Court decision in 2012. Eight lead cases were identified and due to be heard in May 2015. However a policy enquiry ensued and two alleged abusers James Carragher and Anthony McCallen were charged with criminal offences which resulted in a trial and subsequent conviction In December 2015 with substantial prison sentences being given to the abusers. This undoubtedly caused significant delay in the trial of the Claimant’s case for damages.

The Claimant alleged physical abuse at the hands of a Noel Hartnett and Gerard Kelly during 1985 and sexual abuse by Anthony McCallen for a period of six months at a similar time. The Claimant did not make complaint of this abuse until August 2003 when speaking to a probation officer who advised him to consult a solicitor which he did in September 2003 but the matter was transferred to another solicitor in March 2005. Noel Hartnett died in March 2015 but had provided a full statement signed before his death. Gerard Kelly had died in 1990. Anthony McCallen did give evidence for the Defendants. He denied any sexual abuse of the Claimant or at all despite criminal convictions in relation to other complainants. The limitation period started to run on 5th February 1988 and expired on 5th February 1991. Proceedings were issued on 18th July 2005, some 14 years after expiry of the primary limitation period.

HHJ Gosnell confirmed the position that where judges determine s33 applications along with the substantive issues in a case such as this, the judge should not determine the substantive issues, including liability causation and quantum before determining the issue of limitation, and in particular, the effect of delay on the cogency of the evidence (B & Others v Nugent Care Society [2009] EWCA Civ 827). It was accepted that the Claimant’s date of knowledge was when the assaults took place but the limitation period did not start to run until the Claimant reached his majority.

Expert evidence was heard from a psychiatrist for the Claimant and a psychologist for the Defendant in relation to the deterioration of memory over a period of time and both agreed that their task was made more difficult because of a deterioration in the cogency of the evidence as a result of the passage of time. They agreed that it would have been much easier to assess the claim had it been brought within the time limit. Both parties admitted to a tension between the court deciding on reasons for delay in issuing proceedings without actually making a finding of fact whether the abuse had in fact occurred.

 

s33 considerations

HHJ Gosnell confirmed that the burden on the Claimant to persuade the court to exercise its discretion to disapply the limitation period. The test was whether it would be equitable to allow the action to proceed and the court has an unfettered discretion and is enjoined to have regard to all the circumstances of the case. HHJ Gosnell then methodically worked through s33(a-f) of the Limitation Act 1980 when arriving at his conclusion to allow the claim to proceed under s33 Limitation Act 1980. When tackling the issue of delay, of note was the assumption made that the abuse occurred or may have occurred for the purposes of the limitation assessment only in order not to fall foul of the procedure highlighted in B & Others v Nugent Care Society [2009] EWCA Civ 827; recognising that the delay was bound to have some effect on the cogency of the evidence given by any of the witnesses but that the full extent of the delay could not be blamed on the Claimant and such delay did not alter the witnesses recollection of what did or did not happen; accepting that the Claimant may have known enough about his cause of action when he turned 18 but was disabled from pursuing his claim due to the psychological effects of the abuse.

Looking at “all the circumstances of the case”, Counsel for the Claimant suggested that the high level of moral culpability on the part of the perpetrators and Defendants should inure for the benefit of the Claimant in the balancing exercise. HHJ Gosnell dismissed this submission with the following words:

“Whilst there is no doubt that the perpetrators were morally culpable and that the Defendants could reasonably be criticised for the way they investigated the allegations of abuse which preceded the police prosecutions I am not convinced they should weigh significantly in the Claimant’s favour. If they did it would be difficult to see how a Defendant could ever succeed on the section 33 issue when attempting to defend an allegation of child sexual abuse. There would always be a high level of moral culpability attached to the allegations. The system of compensation for the commission of a tort in this country does not involve an assessment of moral culpability. The breach of duty may be accidental (in a strict liability case), negligent, reckless or intentional. The compensation is assessed on the same basis (other than in cases of aggravated or exemplary damages). “

The Defendants also raised the issue of proportionality, namely that the alleged abuse was of moderate severity and any award is likely to be modest and in such circumstances it would be disproportionate to allow the claim to proceed under s33. HHJ Gosnell appreciated that such an argument could be raised but in a case of this nature, he was “uncomfortable in denying justice to a Claimant who claims to have suffered numerous allegations of sexual abuse, including effectively oral rape.”

 

Limitation period disapplied

HHJ Gosnell came to the conclusion that a fair trial was possible and that it would be equitable to allow the action to proceed. Whilst he conceded that the delay was long by any standards and the cogency of the evidence was likely to suffer due to the passage of time, the evidence was fairly narrow. The sexual abuse either happened or it did not. Father McCallen’s evidence would have been no clearer 24 years ago than it was at the time of the trial. The deaths of the other abusers/witnesses occurred during the periods of delay which are not the fault of the Claimant.

Dismissal of Claim

Despite allowing the claim to proceed under s33, HHJ Gosnell in fact dismissed the claim as he ruled against the Claimant on the question of whether or not he was actually abused as he alleged. HHJ Gosnell reached the conclusion that the Claimant was not a convincing witness and rarely engaged with the actual question asked. There was inconsistency with his evidence and the other accounts he had given of the abuse throughout the proceedings and he lied on oath in respect of his business affairs and knowing another Claimant.

Tags: Cogency, Credibility, Delay, Discretion, Evidence, Limitation, Moral Culpability, Physical Abuse, Proportionality, Section 33, Sexual Abuse