A recent case on limitation in historic child abuse claims – the importance of a previous conviction and consent

Helen Horne, an associate at Enable Law and specialist child abuse lawyer reviews the recent Court of Appeal decision and explains that even where there is a conviction, limitation remains a live issue and that all circumstances need to be taken into account and weighed up.

The case of JL v Archbishop Michael George Bowen & Another [2017] EWCA Civ 82 looked at the exercise of time limit discretion under section 33 of the Limitation Act 1980 (LA 1980) in a historic abuse case.

What are the practical implications of this case?

This case demonstrates that limitation remains a very live issue in cases involving historic abuse, even when there has been a successful conclusion.

Along with the recent case of RE v GE [2015] EWCA Civ 287 it highlights that a previous judicial finding in relation to the sexual assault may not be sufficient to persuade a Court to dissaply the time limits and exercise their discretion under s33 of the Limitation Act 1980.

If consent is raised by a Defendant in the context of allegations of historic abuse, even in existence of a conviction, this will be a matter of fact. Therefore, lay evidence will be of particular importance. If the passage of time has prejudiced the cogency of that evidence then a Court may not be prepared to exercise its discretion.

This decision must also be seen in the context of the introduction of the Limitation (Childhood Abuse) (Scotland) Bill to the Scottish Parliament. The Bill will remove the three-year limitation period for anyone who was under the age of 18 when the ‘abuse’ took place. However, the definition of “abuse” has been narrowed, to include sexual abuse, physical abuse and emotional abuse only. The reference to “neglect” has been deleted.

What key issues did the case raise?

This case raised a number of interesting issues but in particular how a Defendant’s submission that some (or all) of the sexual activity was consensual court affect the Court’s exercise when determining whether or not to dissaply the time limits.

The case relates to alleged abuse of the Claimant by Father Laundy. The Claimant was born in 1967 and he joined the Scouts at eight and remained a member until he was 15 and then he served as a scout leader until 18.
The first sexual activity between the Claimant and Fr Laundy started when he was 16 and continued until he was 31. The evidence that was heard was that Fr Laundy did not force the Claimant in any way but he the Claimant did not actively participate. This would happen about every two months until the Claimant went to university. After the Claimant went to university there was occasional contact and sexual activity until Fr Laundy was arrested in 1999 following a complaint be someone else. Fr Laundy was subsequently convicted of indecently assaulting the Claimant and others in 2000.
The Claimant then developed alcohol problems and in 2009, went to a private residential clinic for treatment. The Claimant said that it was this treatment that allowed him to see the connection with the abuse.
The Claimant instructed solicitors and a Claim Form was issued in 2011. Fr Laundy died during the proceedings but not before he had given a draft statement which was before the court.
The Judge at first instance found in the Claimant’s favour and made an award of £20,000.

In arriving at his decision the Judge dealt with the Claimant’s application for limitation to be dissapplied pursuant to Section 33 of the Limitation Act 1980 and the Defendants’ position that the sexual activity was consensual.
The judge found that the Claimant did not realise he had been groomed until 1999 and although he knew he had been assaulted and it had affected him, he only considered the effects in depth during treatment in 2009. It was only then that he realized the abuse had had a significant effect on his “thinking, relationships and behaviour”. The Judge said that overall, these reasons were understandable. In relation to the further two year delay (2009 – 2011) before the commencement of proceedings the Judge found that this not of great significance and said that “I accept that investigation of the claim and preparation for litigation in an action such as this is not straightforward.”
Although he accepted that the delay was bound to affect the cogency of the evidence and this prejudice was significantly compounded by the death of Father Laundy the Judge said it was equitable to dis-apply the limitation period.
In relation to consent, the Judge accepted that there was no clear authority on the test to be applied. At the time the sexual activity started he had capacity to consent. The issue to be determined was a question of fact, namely whether the Claimant freely consent to the assaults given the background of emotional manipulation or whether any apparent consent was vitiated by that emotional manipulation. This was a question of fact.
In this respect, the convictions were not conclusive and it was open to the Defendant to prove that the Claimant did consent. Father Laundy, in his draft statement, said that he considered the sexual activity consensual, but that he was sorry for the offences he had committed. He also said that he had pleaded guilty to recent a shorter prison sentence.
It was accepted that the Claimant was an emotionally vulnerable child and Father Laundy had taken advantage of that and engineered the relationship so that the Claimant came to look to him as a father-figure. As a result of that relationship, the Claimant went along with what Father Laundy wanted as he did not want to reject the most important person in his life. Therefore, the Judge found that the Claimant’s willingness to go along with the sexual activity cannot be regarded as true consent. Such “consent” was the result of grooming.
However, it was accepted that the relationship changed over time and the Judge found that after the Claimant had gone to university the relationship became consensual.
Therefore, the sexual activity prior to the Claimant leaving home for university would be considered to have been abuse.
The appeal

The Defendants appealed the decision on six grounds:-

(i) The judge applied the wrong test to the question of consent and, on the evidence before him, was obliged to conclude that JL had consented to the sexual activity at all material times;

(ii) The judge erred in his approach to the credibility of JL and, whilst recognising his unreliability in many respects, should have rejected his account of events wholesale;

(iii) In the light of a letter written by JL to the judge after the trial, but after he had completed the draft judgment, in which JL accepted that an aspect of his evidence on oath was not true, the judge should have acceded to the request of the appellants to be allowed to cross-examine JL further;

(iv) The judge erred in concluding that the appellants were vicariously liable for the actions of Fr Laundy;

(v) The judge was wrong to disapply the primary limitation period;

(vi) On behalf of the Scout Association alone, the judge was wrong to apportion liability equally between the appellants.

Burnett LJ found for the Defendants that the trial judge was wrong to dissaply the primary limitation period and therefore did not address the other grounds. Therefore, his judgement is limited to dealing with Judge’s decision to dissaply the limitation period but, in doing this, he has also indirectly addressed the issue of consent and the credibility of JL’s evidence.

Burnett LJ accepted the Defendants’ submission that the trial judge had erred when he stated he would apply Lord Clarke MR comments in the case of B v Nugent Care Society [2009] EWCA 827 essentially irrespective of any factual findings he made:-

In Nugent Care Society Lord Clarke MR had said at para 21:-

“…where a judge determines the section 33 application along with the substantive issues in the case he or she should take care not to 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. To do otherwise would, as the court said, be to put the cart before the horse. ”

Given that the trial judge had rejected the majority of JL’s claim for the bulk of the period (i.e. from the date he returned from university) Burnett LJ states that “… the adverse findings he made against JL were important in determining the length of delay, the reasons for delay and the extent of prejudice suffered by the appellants in defending the claim.”

The Judge had concluded that the delay was between nine and 23 years. However, in light of his finding of fact that the sexual activity was consensual upon JL’s return from university, the actual delay was between 21 and 23 years, not as little as nine years. This should have been recognised in considering the length of the delay for the purpose of s33(1)(a) .

In addition, Burnett LJ also disagreed with the trial judge as to whether JL has offered an understandable reason for the delay following the arrest and prosecution of Fr Laundy.

Burnett LJ did accept that if there has been a conviction, then the problems of investigating antique events may be of less consequence and that this is because in the overwhelming majority of cases the conviction proves the tort. However, this case was different given that the question of consent was at the heart of the defence and supported by evidence from Fr Laundy.

Burnett LJ reminded us that consent is the live issue in countless allegations of criminal sexual misconduct and in those cases the juries hear both sides of the story. In this case the court was deprived of evidence from Fr Laundy as well as other evidence that would have been available if the trial had taken place much earlier. This was all the more apparent given the trial judge’s findings that JL was, in many ways, an unreliable witness.

In his conclusion Burnett LJ said that the trial judge took into account too short a period of delay and did not weigh adverse findings he made against JL in considering the range of matters which informed the decision.

In agreeing with Burnett JL, Sir Ernest Ryder said that the correct approach is to adopt an overall assessment of the evidence (which should have included the adverse findings made against JL) and the effect of the delay on the same.

To what extent is the judgment helpful in clarifying the law in this area?

This case demonstrates that limitation remains a live issue in cases involving allegations of historic abuse and that all the circumstances need to be taken into account and weighed up. It is worth reminding ourselves of the comments of the Court of Appeal in RE finding in favour of the Defendant, when they said:-

• No one factor under Section 33 was more important than the others;
• The possibility of a fair trial is necessary but not sufficient;
• The possibility of a fair trial is not the overriding consideration;
• The overriding consideration is what is fair to both parties

There is still considerable uncertainty in how Court’s will approach the issue of limitation in cases involving allegations of historic abuse. This case, following other recent decisions (such as RE and A v Watchtower Bible and Tract Society (Trustees of) & Ors [2015] EWHC 1722) all demonstrate that the Court will need to take into account and appropriate consider all relevant factors specific to that case: a judicial finding of sexual misconduct or abuse on its own may not be sufficient.

Another interesting aspect of this case is how important the issue of consent may be if the abuse spanned a long period of time during adolescence and into adulthood.

What should lawyers advising in this area take from the decision? Any best practice tips?

Each case will turn on the specific facts of the case and it will be important for lawyers to carefully consider the particular circumstances. In some cases, a Claimant will not simply be able to rely upon a conviction or judicial finding (e.g. in the Family Court) when seeking to persuade a Court that dissaplying the time limits is fair to all parties.

Are there any remaining grey areas/unresolved issues practitioners will need to watch out for?

The decision of A v Hoare [2008] UKHL provided guidance as to how limitation should be dealt with in cases involving allegations of historic abuse and the Court confirmed a liberalisation of Section 33, emphasising that the discretion was an unfettered one. In Nugent Care Society the Court of Appeal expressed the view that the decision in Hoare was, in general likely to make it easier for claimants to persuade the court to exercise a Section 33 discretion.

However, we continue to see limitation as an area of considerable litigation and all practitioners will need to be alive to this risk which should dictate a careful consideration of the facts of the case.