Limitation in historic sex abuse claims: recent decisions on the exercise of section 33 of the Limitation Act 1980.
A series of judgments have already been handed down this year that deal with limitation in historic sex abuse cases. Each addresses whether it is equitable to allow the claim to proceed by disapplying the long-expired limitation period, by exercising the discretion under section 33 of the Limitation Act 1980.
Each of the five judgments featured below contained a detailed and careful analysis of the reasons for the delay, the cogency of the evidence and the prejudice to the defendant as a result of the delay. Parties can use the principles that derive from them to more accurately assess the likelihood of the section 33 discretion being exercised in their own case.
This article summarises the facts and findings of each case before commenting on the principles that they give rise to.
London Borough of Haringey v FZO  EWCA Civ 180
From 1980 to 1988, FZO was sexually abused by the First Defendant who was employed by the Second Defendant’s school as a PE teacher. FZO was abused both at school and after he left. He did not realise that what he experienced was abuse until around 2011, when he had a mental breakdown and disclosed it to his long-term partner for the first time. In 2014 the First Defendant pleaded guilty to child abuse charges against FZO. During and as a result of those proceedings, FZO continued to be psychiatrically unwell.
FZO’s claim was issued in 2016 which was 25 to 30 years after limitation expired. Part of the Second Defendant’s case on limitation was that FZO’s evidence was unreliable and not credible, to the extent that it would not be equitable to allow his claim to proceed . This was despite the First Defendant having admitted that some of the abuse had occurred, although not to the extent that was claimed.
Assessing FZO’s credibility, the trial judge found that the inconsistencies in his account did not “render it so … incapable of belief that his claim must fail” . She considered that she was entitled to assess the Second Defendant’s witnesses’ credibility by way of comparison, finding that it was the perpetrator’s account that was “inconceivable”  and .
The trial judge found that the reason for the delay was that FZO did not realise he had been abused in 2011, because of the grooming and emotional manipulation that came with it . It was thereafter reasonable for him to wait for the criminal proceedings to resolve before instigating his civil claim, given his psychiatric condition .
The cogency of the evidence was not affected by the delay since both FZO and the First Defendant were available and able to give evidence on the events. In terms of documentary evidence, she found “there was likely to have been little evidence available about this at the time and … the defendants had not sought to find such evidence” . As such, she concluded that “the ability of each defendant to defend the issue of the extent of liability has not materially been affected and a fair trial of the issue of causation is possible” . She exercised her section 33 discretion in FZO’s favour.
The Second Defendant’s grounds of appeal on limitation somewhat overlapped: (1) that the trial judge misdirected herself as to the correct application of section 33, including by assessing both parties’ credibility, and (2) that the trial judge failed to find that the Second Defendant was at risk of significant prejudice .
On appeal, the trial judge’s decision on limitation was upheld. The Court of Appeal agreed that “if a defendant chooses to attack the credibility of a claimant in this context … he takes the risk that (to the contrary) it is the defence witness that turns out to be incredible” . On the cogency of the evidence, it held that “the judge was … surely correct in her statement in paragraph 190 of the judgment that much of what the Respondent said had happened was accepted by the First Defendant … As the judge said, it is difficult to see what other evidence would have assisted on those issues” .
The Court of Appeal was also critical of the Defendant’s approach to the impact of the delay on the availability of evidence. “It is noteworthy that no significant concrete examples of missing witnesses have been advanced by the Appellant … The judge was right, in my judgment, to take into account that the Appellant had done little or nothing to make up the evidential deficiencies about which they then vigorously complained. The Appellant protests too much, given its inactivity in this respect”  .
BXB v Watch Tower and Bible Tract Society of Pennsylvania and anr  EWHC 156 (QB)
In 1990, the adult BXB was raped by an elder in her Jehovah’s Witness community. Although she didn’t initially report the abuse, when she found out that he had also abused a 14 year old, she reported both instances of abuse to the elders in 1991. An investigation followed, during which BXB was asked invasive questions in the same room as the perpetrator. It concluded that the abuse did not occur and from then on BXB feared she would not be believed if she went to any further authorities about the abuse. In 2014 it was eventually investigated by the police and the perpetrator was convicted of offences against BXB. Her civil claim was issued in 2017, 24 years after primary limitation expired and whilst the perpetrator was still in prison.
The Defendant admitted that the rape had occurred but denied it was vicariously liable. In arguing that the claim should be time-barred, the Defendant submitted that there were other witnesses who they would have called if the claim was brought earlier but had now died.
The judge accepted BXB’s evidence that “following the elders’ investigation C felt humiliated, upset and ashamed; and, as a result, she felt that she would not be believed if she raised the matter formally again” . This did not amount to a psychiatric disablement but as the judge pointed out, this was not the only good reason that could be advanced for delay, finding that there was “no reason why that should not count as a good reason for the purposes of the statute” . He went on to find that the cogency of the evidence was not so affected as to prejudice the Defendant: it was not a case where BXB’s evidence “was so inconsistent as to be obviously unreliable” and it was “difficult to see how the evidence on matters would have been significantly different had the claim been brought in the early 1990s” . As a result, no significant prejudice arose from the death of the Defendant’s further witnesses. Limitation was disapplied and the claim was allowed to proceed on the merits.
DSN v Blackpool Football Club Limited  EWHC 595 (QB)
DSN was sexually abused by his football coach on a tour in 1987 when he was 13 years old. The perpetrator was convicted of child sex offences committed not long before the tour. Limitation expired in 1995 and the perpetrator died in 2005. DSN did not speak about the abuse as an adult until he disclosed it to his wife in 2013 after the Jimmy Saville story broke and reported it to the NSPCC, all of which triggered a deterioration in his mental health. His civil claim was issued in 2018, some 22 years after the expiry of primary limitation. There were 18 witnesses of fact including DSN who had a clear recollection of the abuse and a number of others who gave live evidence of their own abusive encounters with the perpetrator.
The judge exercised his section 33 discretion to allow the claim to proceed. He found that the reason for the delay was that DSN was psychiatrically disabled from bringing the claim by his shame, fears of disclosing, coping strategy of avoidance and his mental health . The judge also found that the cogency of the evidence was not compromised by the delay, notwithstanding the perpetrator’s death in 2005. This was because “the evidence of the claimant … was cogent, circumstantial and convincing … indeed compelling”, even before considering the perpetrator’s convictions as a child sex abuser . The force of DSN’s evidence was such that “any denial by Roper would have carried very little weight given the cogency of the evidence against it”  and there would have been little documentary evidence to assist had the claim been brought at an earlier date .
EXE v Governors of the Royal Naval School  EWHC 596 (QB)
EXE was first abused when she was 14, by a kitchen porter who worked at the Defendant’s school. The perpetrator had a criminal history of child sex abuse but the Defendant was unaware of this having not checked his background. He and EXE met regularly and had sexual intercourse, an arrangement that she did not see as abuse. However, later that year he raped her: she reported him to the police and he was convicted of underage sex charges.
Primary limitation expired in 1997 and proceedings were issued in 2017. Factoring in the agreed limitation moratium, the claim was issued 24 years out of time. When the civil proceedings were issued, the perpetrator’s whereabouts were unknown and so he could not be contacted by the Defendant.
At the outset the judge emphasised that “the issues in the case … are smaller than the big fact of Hughes’ criminal responsibility for harm to a young girl” . The issues were limited to the Defendant school’s vicarious liability for the abuse and their negligence in recruiting the perpetrator without doing background checks. It was in this context that the limitation issue arose.
In the course of EXE’s evidence there were a number of events that she did not remember or denied happening, but which were clearly indicated by other evidence in the case. She had also given an account to the police at the time which was very different to the one she gave in the civil proceedings. She said at the civil trial that she deliberately gave a false account to the police, to try to protect the perpetrator.
Considering the reason(s) for the delay, the judge accepted that EXE suffered anxiety and shame as a result of the alleged abuse but that “it did not disable her from [bringing the claim]” . He highlighted (as the court had in BXB) however that “in a case where the claimant is not ‘psychiatrically disabled’ the ‘reason for the delay’ … cannot count in the claimant’s favour when performing the assessment of ‘all the circumstances of the case’” .
On the cogency of the evidence, the judge found that EXE’s evidence could not be believed “unless and insofar as [it] was supported by other credible evidence” . He found that her contemporaneous and detailed police evidence was more convincing than her evidence in the civil proceedings. He concluded that “the cogency of the evidence on all sides has suffered significantly and irreparably by the loss of witnesses, the loss of records, and deteriorating recollection [such that it] has caused very significant prejudice to both sides. This prejudice on both sides does not cancel out” .
As a result he found it was no longer possible to have a fair trial and so the claim was time-barred.
FXF v Ampleforth Abbey Trustees  EWHC 791 (QB)
FXF was sexually abused by a priest in 1968/69 when she was 5 years old. She recalled two specific incidents of abuse and was told about a third by her sister (who gave evidence at trial). Her parents did not acknowledge the abuse to FXF during her childhood and so she tried to push it to the back of her mind until a series of events triggered her memories from 2012 onwards. Primary limitation expired in 1985 and the perpetrator died in 1990. FXF’s claim was issued in 2017, 32 years after the expiry of limitation.
The judge found that part of the reason for the delay was FXF’s genuine feelings of shame and embarrassment, but that these “were never ‘psychiatrically disabling’” . The other reasons included not knowing the perpetrator’s full name and needing to be strong to deal with other difficult life events. The judge weighed the reasons for the delay against the prejudice that it caused the Defendant, finding that the prejudice outweighed the reasons for the delay.
The judge assessed the cogency of both parties’ evidence, finding that although FXF had a genuine belief that she was abused, there were lapses in her memory and no contemporaneous records to fill the gaps. As a result of the perpetrator’s death, the Defendant was unable to advance a positive case which, against the backdrop of the gaps in FXF’s evidence, amounted to substantial prejudice preventing a fair trial. She agreed that where a claimant has a very strong case “this would have weighed heavily in the balance in her favour”  but that the gaps in FXF’s evidence meant this did not apply and that but for his death, the perpetrator would have had “a case to answer” .
As such, the judge did not exercise her section 33 discretion and the claim was time-barred.
As the range of outcomes on limitation shows, the mere fact a claim is brought more than 20 years after the expiry of limitation (and even longer since the alleged abuse) does not preclude the exercise of section 33 discretion. It is deliberately unfettered and more concerned with the reasons and effects of the delay than the length of it. Inevitably each case turns on its own particular facts, but the recent cases above provide principles to consider when assessing the merits of their claim on limitation in very different factual settings.
Both claimants and defendants often focus on the presence or absence of psychiatric disablement as a reason for delay, the importance of which was established in A v Hoare  UKHL 6. Although its presence is likely to be a good reason, it is not the only good reason, as emphasised in both BXB and EXE. Feelings of shame and embarrassment can amount to a good reason or alternatively form part of all the circumstances of the case, depending on their impact on the claimant’s actions. A legitimate fear of not being believed suggests it is more likely to be the former than the latter, as was the case in BXB.
The cogency of the evidence is inextricably linked to both limitation and the merits of the substantive claim. As a result and as in FXF and DSN in particular, the merits of the claim/ defence are often relevant to limitation. A strong case on the merits can outweigh the prejudice to the defendant, even if the perpetrator has died. The result achieved in DSN is likely to be difficult to replicate however: often the death of the perpetrator precludes the defendant from having a positive case, and the claim is advanced by a less compelling claimant. But the point remains that the death of the perpetrator does not necessarily mean it will not be equitable for the claim to proceed, particularly in cases where the claimant’s own and circumstantial evidence is cogent and convincing.
Where a defendant criticises the credibility or reliability of the claimant as relevant to limitation, the court is entitled to (and should) compare them with the defendant’s own witnesses. This exercise may result in a finding adverse to the defendant but as the Court of Appeal said in FZO, the defendant takes that risk by taking the point.
Even if the abuse has resulted in a criminal conviction, it will not always be equitable to disapply limitation. It does not follow that a defendant is not substantially prejudiced, or that a fair trial is possible, on the equally important issues of the extent and causative impact of the abuse. Therefore, whilst in some cases it will be a factor in favour of disapplying limitation (DSN and BXB), it is by no means a guarantee (EXE).
Finally, the persuasiveness of a defendant’s argument that they could have obtained further evidence but for the delay (resulting in substantial prejudice) is now limited by FZO. In order for this to have teeth, the defendant must have attempted to obtain that evidence from the sources actually available: an abstract claim of what could have been is not enough.
References in square brackets are to paragraphs of the judgments as follows:
Megan Griffiths, pupil.