“14(1) Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts - (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; (c) the identity of the defendant; and (d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. (2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. (3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire – (a) from facts observable or ascertainable by him, or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and where appropriate, to act on) that advice. 33(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which – (a) the provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. … (3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to – (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical legal or other expert advice and the nature of any such advice he may have received.” (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; (c) the identity of the defendant; and (d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; (a) from facts observable or ascertainable by him, or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; (a) the provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical legal or other expert advice and the nature of any such advice he may have received.”
“i) In multiple claims of this sort, a judge should consider the exercise of his discretion separately in relation to each claim. ii) The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it. iii) Depending on the issues and the nature of the evidence going to them, the longer the delay the more likely, and the greater, the prejudice to the defendant. iv) Where a judge is minded to grant a long "extension" he should take meticulous care in giving reasons for doing so. v) A judge should not reach a decision effectively concluding the matter on the strength of any one of the circumstances specified in section 33(3), or on one of any other circumstances relevant to his decision, or without regard to all the issues in the case. He should conduct the balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all the issues, taking them all into account. vi) Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery. (See further below) vii) Where a judge determines the section 33 issue along with the substantive issues in the case, he 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. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay. viii) Where a judge has assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, he should keep in mind in balancing the respective prejudice to the parties that the more cogent the claimant's case the greater the prejudice to the defendant in depriving him of the benefit of the limitation period. As Parker LJ showed in Hartley v. Birmingham City District Council[1992] 1 WLR 968 , CA, at 979G-H, such a finding is usually neutral on the balance of prejudice: “ … in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff's case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied … as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend.”
“84. With regard to the exercise of the court's discretion under Section 33 of the 1980 Act, however, I would make just three brief comments - not, let it be clear, in any way to fetter a discretion which the House in Horton v Sadler[2006] UKHL 27 ,[2007] 1 AC 307 recently confirmed to be unfettered, but rather to suggest the sort of considerations which ought clearly to be in mind in sexual abuse cases in the new era which your Lordships are now ushering in, first, by departing from Stubbings v Webb, and secondly, by construing consideration of the inhibiting effect of sexual abuse upon certain victims’ preparedness to bring proceedings in respect of it. 85. First, so far as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffman suggests, at paragraph 52, that is likely to bear significantly upon the possibility of having a fair trial. 86. Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true), are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing. If, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial, (which must surely include a fair opportunity for the defendant to investigate the allegations, - see section 33(3)(b),), is in many cases likely to be found quite simply impossible after a long delay. 87. Hitherto, the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffman at paragraph 36). It is not to be supposed that the exercise of the court's section 33 discretion will invariably replicate that position.”
“29. With great diffidence, I do have some difficulty in following how the cogency of a claimant's case can be held to be neutral. An incoherent and weak case from an impecunious claimant will be likely to prejudice a defendant, who will probably defend successfully, but not recover the cost of doing so. That is easy to follow. However, it seems to me that a cogent and well-supported case for a claimant must usually argue at least to some degree in favour of the extension of discretion, since such a case would tend to carry the promise of a potentially fair trial, and since the implication would also usually be that a case which remains cogent and well supported after a lapse of time, would always have been more difficult to defend. I find it hard to think that it is usually equitable to refuse to extend the discretion because the claimant's case is weak, whilst it is also usually equitable to bear in mind how valuable is the limitation defence when the claimant's case is strong.”
“73. It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.”
“With such evidential material I am satisfied that I can now rule upon the limitation defences and that I should do so at this mid point in the trial so as to give the Defendants belated but still worthwhile benefit of any successful invocation of the defence – and so as to avoid unnecessarily prolonging the Claimants' stress.”
“I was satisfied that, when giving evidence, the Claimant was doing his best to give me a fair and truthful history. Thus, as to the abuse itself, his account has been reasonably consistent and, notwithstanding the acquittal of Hepburn, it has understandably not been challenged before me. As to the subsequent 38 year period (1968 to 2006) his account is of virtual necessity blurred and broad brush but his bona fides are to my mind clear even if his reliability is inevitably more open to question.”
“… as with Mr [JPM] I was satisfied that the Claimant was doing his best to give a fair and truthful history. Further, whilst making allowances for inevitable difficulties in terms of recollection arising when the history stretches back to 1972, I felt that I could reasonably rely upon his evidence. I should add that over the years since his troubled adolescence Mr JB has matured remarkably so as to make a notably impressive presentation.”
“Therefore, the starting point in dealing with his findings is that he found proven abuse in both cases. The details or extent of that abuse, I do not regard as being necessarily proven. However, there is sufficient precision as to the findings for considering the exercise of discretion, and that was indeed the conclusion of the Court of Appeal when they remitted the matter for consideration, initially by Sir Christopher Holland himself.”
“I couldn't tell anyone about the abuse I was suffering … I wanted to tell my parents but couldn't bring myself to do it … When I left St Aidans I began drinking alcohol, although I was still a young man. I have been drinking ever since. I believe St Aidans ruined my life. I have never been able to forget it … I am pleased now that I have had the opportunity to get it all off my chest. I have been asked if I intend to claim compensation for the abuse I have suffered. To tell you the truth, the thought never entered my head. I have not told this to claim compensation, as I have said before, my life has been ruined and I want these people to be brought to justice.”
“Given that abuse in general terms has been proved here, and given that system evidence is no longer relevant or is very much less so, the findings reached by the learned Judge required to be revised, in the light of the different way this case could be tried. The details of system which formed an important part of his thinking fall away or largely do so.”
“34. I interpose: as with Mr [JPM] I was satisfied that the Claimant was doing his best to give a fair and truthful history. Further, whilst making allowances for inevitable difficulties in terms of recollection arising when the history stretches back to 1972, I felt that I could reasonably rely upon his evidence. I should add that over the years since his troubled adolescence Mr. JB has matured remarkably so as to make a notably impressive presentation.”
“This appears to be a case where pre-care factors arose anyway, and the alleged abuse in care have each contributed to the claimant's problems as an adult. I estimate that the attribution can be divided 60% pre-care, 20% alleged abuse in care and 20% the process of being in care generally.”
“73. In terms of the specific criteria under the Act, firstly in relation to sub-paragraph a), the length of the delay is somewhat less than that of JPM, but it is still long. As found by Holland J., this claimant had no thought of suing. There was a clear inhibitory effect. It is to be noted this is much less serious sex abuse than in the case of JPM. 74. When considering the extent of delay, the evidence adduced would be less cogent, but this mostly bears on the issue of system which has gone. The primary abuse is proven, although its detail might need to be elaborated. There was a pre-existing disorder. There is a range of missing documents here, which both sides agree might have quite a degree of significance for causation. The causation issue seems to me to be more complex than in JPM. The trial of that issue seems to me undoubtedly to be affected by time. Dr. Wood gives some ascription in what seems to me, with great respect to him, to be rather a throwaway and clearly very approximate conclusion. On the facts of this case that cannot act to set aside the difficulty of causation. 75. The conduct of the defendant does not arise here. Nor is there any history of disability, meaning that limitation should be suspended in time. I have dealt already with delay by the claimant, and of the steps taken by the claimant in what I have said. 76. In considering whether it would be proportionate to exercise a discretion here, I do bear in mind that this again is a general damages only claim. It seems to me that causation evidence will mean a trial of experts, involving the assessment of a previous psychological disorder which will not necessarily be straightforward. It is not a large claim, on any view. 77. Is it equitable to let the action proceed, with all of those considerations in mind? Accepting that abuse has been proved here and that this claimant has been believed, I bear in mind that the House of Lords has made clear that cannot be the only consideration. Not every abused person, even where that is established, can proceed. The nature of the abuse here is much less stark. On balance, I do not extend discretion in the case of JB.”
“He then started to play with me. He put his hand on to my penis over my trousers. I was fully clothed. He then undid my trousers. I was totally numb. I felt trapped. I just sat there. He then had oral sex with me. I could not believe what was happening. He continued until I ejaculated, and I think he used a tissue to clean it up, but I cannot be sure.”
“Really it was just self-preservation. I did not want to go through that again, and I also feared that if he did anything to me again, it would escalate, which absolutely terrified me. At the time I thought a lot about what had happened, and wondered if I was homosexual.”
“It dragged me into the past, and all that I tried to push down, was suddenly in front of me and would not go away. I felt it was ‘present’ again. It was like it had just happened. It was not new for me. I told my wife why the police had been round, that I had been abused. It was news to her. It did not help our relationship, in fact it made me more isolated.”
“Abused as a child in care. Been contacted by the police to make a statement to get compensation. Feels need to talk. Brandy started everyday, and brandy when has money. Job as welder.”
“I am largely in agreement with Mrs Cohen's analysis of this case. A significant percentage of DVB's difficulties in life should be attributed to his genetic inheritance and pre-care childhood experiences. The alleged sexual abuse DVB suffered was comparatively minor, when compared with that experienced on a repeated basis by many of the claimants in historical/sexual abuse litigation. The history here is one of DVB suffering psychological difficulty, when his memories of being abused were brought to the fore by the police investigation. In the course of our assessment, the claimant was not found to be a reliable informant. He is probably exaggerating the symptoms in relation to the alleged sexual abuse. If the court accepts the claimant's account of matters, the diagnosis of adjustment disorder, anxious and depressed type, is a reasonable one. Anxiety, depression and a tendency to drink to excess were associated with this process. There does not appear to be any other significant sexual discussion in the case. Further to receiving appropriate treatment, DVB has made a good recovery. His drinking is under control, his drug abuse is largely behind him and he is able to function normally.”
“Assuming the court accepts his account of matters, DVB reacted badly to his memories of childhood sexual abuse being reawakened in the course of the police investigation. It is likely that he suffered an adjustment disorder reaction of moderate intensity, lasting about three years as a result of this, and in due course DVB has made a good recovery. His prognosis is now good.”
“a. From a psychiatric perspective, the events of abuse, if they be established, did not result in any psychiatric injury. b. After the disclosure to the police in 2000, the claimant did experience the onset of a psychiatric illness, which was a mixed picture of anxiety and depression characterised by a series of panic attacks. c. The police interview was a trigger – what the interview triggered is a matter of dispute: i. Dr Webster thought it triggered a recrudescence of memories of abuse which, although still in his memory, he had been able not to dwell on over his adult life, but which when they came to the fore, gave rise to a psychiatric injury in the weeks following his disclosure. ii. Dr Boakes, leaving aside the ‘possibility’ of a false memory, whilst acknowledging that the interview triggered a depressive episode, felt that this was in fact due to the problems he was experiencing in his marriage and at work, which was always liable to come about, once the right trigger came along. So the earlier abuse in effect was the causa sine qua non of the anxiety/depression (the injury) but not the causa causans of the injury.” i. Dr Webster thought it triggered a recrudescence of memories of abuse which, although still in his memory, he had been able not to dwell on over his adult life, but which when they came to the fore, gave rise to a psychiatric injury in the weeks following his disclosure. ii. Dr Boakes, leaving aside the ‘possibility’ of a false memory, whilst acknowledging that the interview triggered a depressive episode, felt that this was in fact due to the problems he was experiencing in his marriage and at work, which was always liable to come about, once the right trigger came along. So the earlier abuse in effect was the causa sine qua non of the anxiety/depression (the injury) but not the causa causans of the injury.”
“This was not a casual fondling but oral sex. Appreciating that there was only one episode of oral sex, it had a marked effect on the claimant at the time. He avoided Mr Dick immediately. His reaction against what happened was strong. These are powerful indications of the fact that even at that age he realised that what had happened to him was a significant assault. Anyone would recognise what happened on his account to be a significant assault.”
“[19] … whereas the claimant may well have experienced feelings of defilement, degradation and humiliation and, after the events in question, experienced feelings of revulsion, disgust and even feelings of guilt – whilst these are very understandable feelings of human emotion, they are not injuries properly so called – at least not recognised by the law … On the facts of this case, I cannot see that there will have been a discrete injury, whether physical or psychiatric.” “[26] On the present facts, I take the view given the vulnerability and youth of the claimant at the time these acts of sexual abuse were perpetrated that it was reasonable for him at the time not to have regarded his repeated sexual insults as ‘significant’ – he obviously knew what was being done to him was wrong and serious but he was not being outwardly injured at the time … In my judgment this was an emerging problem which had to be combated as best the claimant could and his mechanism … was to block it out. … I am satisfied that by no later than his 16th birthday, the claimant will have had knowledge as to the ‘significance’ of what I find was an injury.”
“In so far as an assault and battery results in physical injury to the claimant, the damages will be calculated as in any other action for personal injury. However, beyond this, the tort of assault affords protection from the insult which may arise from interference with the person. Thus a further important head of damage is the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation that may be caused. Damages may thus be recovered by a claimant for an assault, with or without a technical battery, which has done him no physical injury at all.”
“‘personal injuries’ includes any disease and any impairments of a person’s physical or mental condition, and ‘injury’ and cognate expressions shall be construed accordingly.”