Archbishop Bowen & Anor v JL [2017] EWCA Civ 82

[2017] EWCA Civ 82

Case No B3/2015/3660

Linked with B3/2015/3672 & B3/2015/3672(A)

IN THE COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM MANCHESTER COUNTY COURT

HIS HONOUR JUDGE PLATTS

1IR72777

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21/02/2017

Before

LORD JUSTICE LEWISON

SIR ERNEST RYDER SENIOR PRESIDENT OF TRIBUNALS

LORD JUSTICE BURNETT

Between

ARCHBISHOP MICHAEL GEORGE BOWEN1 st Appellant

THE SCOUT ASSOCIATION2 nd Appellant

JLRespondent

William Norris QC and Nicholas Fewtrell (instructed by Hill Dickinson LLP) for 1st Appellant

Steven Ford QC and Adam Weitzman QC (instructed by BLM Solicitors) for 2nd Appellant

Liz-Anne Gumbel QC and Justin Levinson (instructed by Slater and Gordon) for Respondent

Hearing Hearing dates: 17 th and 18 th January 2017

Judgment Approved

[1]The respondent to this appeal (“JL”) recovered £20,000 in general damages against the appellants following a trial in which he established that Father Anthony Laundy had assaulted him sexually between 1984 and 1987. He was between about sixteen and a half and nineteen years old. He then went to university. JL failed to establish the balance, indeed the bulk of his claim, that Fr Laundy had assaulted him sexually for the nine or ten years up to 1999 after he had completed his law degree. During that period, JL qualified as a solicitor, worked as such and then turned to acting and to business. The cause of action was in trespass to the person. Amongst the issues at trial was whether, throughout the period during which JL claimed he had been sexually assaulted, he had consented to the activities which founded his claim. His case was that he did not consent to any of the sexual touching throughout the period from when he was sixteen to when he was 31 because he had been groomed by Fr Laundy and emotionally manipulated. Judge Platts concluded that JL had consented to all sexual contact which followed his going to university but not that which preceded it. JL only saw Fr Laundy once or twice whilst he was at university, instigated by JL. Although JL was unsure whether there was any sexual contact on that (or those) occasions, the judge concluded that there probably was.

[2]Both the Archbishop and the Scout Association resisted the claim on two further bases. First, they relied upon a limitation defence, the claim having been brought outside the period allowed by section 11 of the Limitation Act 1980 (“the 1980 Act”) in respect of each of the individual assaults relied upon. That period is three years. Proceedings were not issued until 29 November 2011, initially against the Archbishop alone. At that stage Fr Laundy was still alive but he died on 17 April 2014. The proceedings were amended in October 2013 to join the Scout Association. The trial was in March 2015. Secondly, they each contended that they were not vicariously liable for the actions of Fr Laundy, whatever the position of the other might be. The claim was advanced for about £500,000. JL’s case was that many problems he had encountered in his working and private life were the result of the assaults. That claim was rejected in its entirety by the judge.

[3]The substance of the claim and the limitation issue were heard at the same time. In a reserved judgment handed down on 27 May 2015, the judge allowed the claim to proceed in respect of all allegations. Pursuant to section 33 of the 1980 Act, he disapplied the limitation period. He concluded that both the Archbishop and the Scout Association were vicariously liable for the assaults which had occurred and apportioned liability equally between the appellants pursuant to the Civil Liability (Contribution) Act 1978.

[4]There are six grounds on which the Archbishop and Scout Association have permission to appeal:(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.

[5]For reasons which I shall explain, I have come to the conclusion that the judge was wrong to disapply the primary limitation period in this case with the consequence that the claim should have been dismissed. I would allow the appeal on that basis and, for my part, do not consider that it would be appropriate to examine the balance of the grounds of appeal.

The facts in outline

[6]Fr Laundy was a catholic priest attached to the Archdiocese of Southwark and also the chaplain of the 9th Wimbledon Scout Group. Archbishop Bowen was a nominal defendant, having been in post as Archbishop of Southwark at the material times. Fr Laundy was born in 1941 and educated by the Jesuits at Wimbledon College. The Scout Group was associated with Wimbledon College. He was a member of the Scout Group as a boy and continued his association into adulthood. After his ordination, he served as chaplain to the Scout Group between 1966 and 1996. JL was born on 23 December 1967. He became a cub scout when he was seven or eight years old. In due course he became a scout and then a venture scout. He came into contact with Fr Laundy through the scouts and became close to him emotionally in a context that included, as the judge accepted, some difficulties in his relationship with his own father.

[7]The claim contained no allegation of sexual assault before an event which occurred when JL was approaching seventeen. JL and Fr Laundy were together frequently at scout meetings and also during camps. Until 1984 Fr Laundy was the diocesan director of vocations and lived in Purley. From time to time, JL and other scouts visited him at his home there. Meetings connected with the scouts were sometimes held and boys, including JL, would occasionally stay overnight. In 1984 Fr Laundy was appointed parish priest at St Winifred’s Church, Kew. JL’s family did not live in his parish and were never Fr Laundy’s parishioners. His parents trusted Fr Laundy completely. They had known him for years and were relaxed about their son occasionally staying at the presbytery. The judge accepted that JL helped Fr Laundy with the parish magazine and also carried out chores for which he was paid.

[8]JL’s account of the first incident, which the judge accepted, was that he had gone to bed in the presbytery when Fr Laundy came into his room wearing a dressing gown. He got into the single bed occupied by JL. The priest touched JL’s genitals and masturbated him. He asked JL to reciprocate and attempted to put JL’s hand on his penis. JL refused to do so. This behaviour was repeated on an unspecified number of occasions until JL went to University in September 1987. JL’s estimate was that he stayed with Fr Laundy perhaps twice a month. On each occasion the priest would come to his room. He would allow the priest to masturbate him, but he refused to reciprocate. The issue on consent during this period was whether, taking JL’s emotional dependency into account (in particular whether Fr Laundy was manipulating him emotionally) the apparent consent to the sexual touching was real. In short, was the apparent consent free consent?

[9]JL visited Fr Laundy one or twice while he was at university. Following his graduation JL returned to London and re-established contact with Fr Laundy. They were to all outside observers very close friends. JL qualified as a solicitor in 1992, secured a training contract and in due course a position with a prestigious firm of solicitors in London. He met and fell in love with a woman whom he married in 1994. They asked Fr Laundy to officiate at their wedding. JL and his wife had a child in 1997. By then JL had given up being a solicitor. He undertook various jobs and retrained. At about this time the marriage failed. The couple eventually divorced in 1999.

[10]In August 1999 Fr Laundy was arrested in connection with an allegation of sexual assault concerning another boy, who was sixteen at the time of the incident.

[11]Throughout the period between JL’s return to London and Fr Laundy’s arrest, he and JL had conducted a sexual relationship described by JL as being of the same nature as had occurred in the years before he went to university. Following his arrest, Fr Laundy immediately got in touch with JL to tell him of what had occurred. JL explained that Fr Laundy was concerned to know whether he had damaged JL in any way. He was reassured by JL that he had not. But the news came as a blow to JL. He had believed that he was special to Fr Laundy and that he was the only person with whom the priest had had sexual contact. JL spoke to his ex-wife about what Fr Laundy had told him and also said to her that there had been sexual contact between the two of them before he went to university. He said nothing of more recent events. JL did not want to go to the police but his ex-wife made contact with them as a result of what she had been told. It was in those circumstances that JL made three statements to the police on 8 December 1999, 27 January 2000 and 12 April 2000. The second statement was prompted by material found by the police when searching Fr Laundy’s home. There were recent photographs taken by the priest of JL posing naked for him.

[12]Fr Laundy was charged with a total of 15 counts of indecent assault upon men contrary to section 15(1) of the Sexual Offences Act 1956 (“the 1956 Act”). Five of those counts related to JL. On 30 August 2000 Fr Laundy pleaded guilty to those and a number of counts relating to other victims. The remainder lay on the file in the usual way. The five counts relating to JL covered the period between Fr Laundy moving to St Winifred’s and JL going to university and also the second period up to 1999. He was sentenced to two years’ imprisonment. The 1956 Act was the statute in force at the time of the alleged offences. It has since been replaced by the Sexual Offences Act 2003. Despite the efforts of all parties in these proceedings, almost nothing relating to the criminal matter has been discovered. We have the indictment, the record of conviction and the three statements of JL, together with a short press report. Section 15 provides:

“(1) It is an offence for a person to make an indecent assault on a man. (2) A boy under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section. (3) …”

Therefore, the consent of a man of sixteen or over to the “indecent” act is a defence to a charge under section 15(1).

[13]Fr Laundy could have tried to defend the criminal charges on the basis of JL’s consent but chose not to do so. The convictions were relied upon by JL in the civil proceedings pursuant to section 11 of the Civil Evidence Act 1968. The effect was to reverse the burden of proof. Unless the defendants could prove that Fr Laundy had not committed the sexual assaults of which he had been convicted on his guilty pleas, the question of their vicarious liability for his conduct would proceed on the basis that he had done so: Hunter v Chief Constable of the West Midlands Police and others [1982] A.C. 529 per Lord Diplock at 544.

[14]Fr Laundy was interviewed by Monsignor Moth under oath in 2003 in connection with his petition to leave the priesthood. A small section of the interview concerned the circumstances of his arrest and prosecution. During that interview Fr Laundy explained that he had pleaded guilty to avoid further publicity for himself and the Church and also because he had been advised that he “might not be believed by a jury and might get a heavier sentence if it went to trial.” Thus, the account he gave of what occurred is at least consistent with consent having been given. He also indicated that the charges in relation to one of the complainants should not have been brought at all. He did not say which one; and in respect of another, who could not have been JL, he said that underlying events occurred much later when the person concerned was an adult. Much later, on 5 December 2012, he was interviewed by the solicitors acting for the Archbishop. A draft witness statement was produced but was not signed before the priest died in April 2014. The interview was for the purpose of gathering information to enable a defence to be filed on behalf of the Archbishop. It did not explore the question of consent in any detail although it recorded Fr Laundy’s statement that the relationship with JL was consensual. At the time, those acting for the Archbishop were proceeding in the mistaken belief that consent was irrelevant. They mistakenly believed that because JL was under 21, at least at the time of the initial events, he could not in law consent. They discovered that Fr Laundy had died when they sought to arrange a further meeting to take a full proof of evidence.

[15]Although these proceedings were not issued until 29 November 2011 JL had first consulted solicitors on 4 December 2010. In the years between Fr Laundy’s conviction and 2009 JL had pursued a range of business activities some of which had not prospered. He was drinking heavily and his personal life was unstable. In late 2009 he attended an organisation called Lifeworks for treatment prompted by his alcohol addiction. That involved exploring his background and the underlying difficulties and traumas in his life. It was during this exercise, on JL’s account, that Lifeworks enabled him to realise that his emotional and professional problems were the result of his relationship with Fr Laundy and, in particular, the sexual abuse he suffered. It was that realisation which prompted him to consult solicitors and issue proceedings. There were two important features of his account to those at Lifeworks which were not true. First, that the abuse had started when he was only thirteen years old; and secondly that the sexual activity in adulthood was non-consensual.

Limitation

[16]The primary limitation period for a claim of sexual abuse of the nature alleged in this claim is three years from the date of knowledge provided by section 11 of the 1980 Act,subject to the power to extend that period found in section 33. There was no issue on dates of knowledge. The limitation period does not run during any period of legal incapacity, including when a person is a minor. It follows that the limitation period in this case began to run for the earliest incidents only from JL’s eighteenth birthday on 23 December 1985. For any incident which preceded his eighteenth birthday the primary limitation period expired three years later on 23 December 1988. The last of the pre-university incidents was placed by the judge in September 1987. It follows that the limitation period for the last such incident expired in September 1990. For each of the alleged sexual assaults which followed JL’s return to London from university, the limitation period was three years. The last sexual contact was in late 1999 for which the limitation period expired in late 2002. It was for that reason that the judge concluded that the relevant delay before the issue of proceedings in this claim was between nine and 23 years.

[17]Section 33 of the 1980 Act provides:

“Discretionary exclusion of time limit for actions in respect of personal injuries or death. (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 the 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) 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. (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 the 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. …”

[18]The language of section 33(1) is clearly discretionary (may direct etc.) but the question for the court is whether it would be equitable to allow the action to proceed. The court may allow the whole or part of the claim to proceed. But it cannot be doubted that if a judge concluded that it would be equitable to allow the claim, or part of the claim, to proceed having regard to the relative prejudice to the parties, he should do so. The breadth of the discretion comes from the untrammelled evaluation of relevant factors that a judge may take into account, and the weight he gives to each. The factors identified in section 33(3) are all relevant but the decision on whether it is equitable to proceed will be based upon a broad consideration of all the circumstances.

[19]An appellate court will be very slow to interfere with a decision under section 33 so long as there has been no misdirection of law or misapprehension of significant facts. Absent either of those features, an appellant would have a difficult task to persuade an appeal court that the judge’s decision was wrong. The fact that the appellate court might itself have come to a different conclusion on the same material is neither here nor there.

[20]Mr Norris QC for the Archbishop, supported by Mr Ford QC for the Scout Association, submits that the judge erred both in law and in his appreciation of the material facts. In respect of the latter, he submits that the judge failed to appreciate the significance of his findings after JL made his statements to the police and Fr Laundy was convicted and the period during which, as an adult, he was having a consensual sexual activity with the priest. They provided no good reason for delay. Miss Gumbel QC and Mr Levinson, who developed oral submissions on this issue, submit that the judge made no error of law and came to a conclusion open to him on the facts. He carefully considered the circumstances in which the delay occurred and appreciated the prejudice suffered by the appellants in not having the evidence of Fr Laundy. His decision to direct that the limitation period should not apply was not wrong.

[21]The judge was referred to many well-known authorities on the exercise of discretion under section 33 of the 1980 Act, including A v Hoare

[2008] UKHL 6

, [2008] 1 A.C. 844, Cain v Francis

[2008] EWCA Civ 1451

[2009] QB 754

and B v Nugent Care Society

[2009] EWCA Civ 827

[2010] 1 WLR 516

The A v Hoare case established that the time limit for claims of sexual abuse, whether brought in negligence or trespass to the person, was three years. Since the earlier decision of Stubbings v Webb

[1993] AC 498

the understanding had been that a claim for sexual assault was governed by a non-extendable time limit of six years. It was for that reason that many claims were couched in negligence causing personal injury in an attempt to enable discretion under section 33 to be applied in out of time cases. The House of Lords also considered questions arising under section 14 of the 1980 Act, which concern the date of knowledge from which the limitation period runs. It explored issues arising under section 33. Lord Hoffmann, with whom Lord Walker, Lord Carswell and Lord Brown of Eaton-under-Heywood agreed, concluded that psychological factors arising from the alleged abuse which resulted in delay in issuing proceedings should be considered under section 33, see paragraph 45 and following. Between paragraphs 84 and 87 Lord Brown made three distinct points about section 33 which Lord Hoffmann described as being particularly valuable and with which Lord Walker expressed his complete agreement:

“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 [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, firstly, by departing from Stubbings v Webb and, secondly, by construing section 14(2) so as to transfer from that provision to section 33 consideration of the inhibiting effect of sexual abuse upon certain victims’ preparedness to bring proceedings in respect of it. 85. First, insofar 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 Hoffmann suggests, at para 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 Hoffmann at paragraph 36). It is not to be supposed that the exercise of the court’s section 33 discretion will invariably replicate that position.”

[22]In the Cain case Smith LJ gave guidance on the application of section 33:

“73 … 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.”

The Nugent Care Society case provided an opportunity for the Court of Appeal to review aspects of the law of limitation in claims arising out of sexual abuse, including under section 33 of the 1980 Act. An earlier comprehensive review had been undertaken by the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd

[2003] EWCA Civ 85

[2003] QB 1441

, but was revisited in the light of the A v Hoare case.

[23]In Bryn Alyn the court had distilled a series of propositions from the existing case law which were brought together in paragraph 74 of the judgment of Auld LJ: “We take the following to be well-established and/or uncontroversial starting points for the exercise of the discretion: i) In multiple claims of this sort, a judge should consider the exercise of his discretion separately in relation to each claim; Nash v. Eli Lilly & Co. [9193] 1 WLR 782, CA, per Purchas LJ at 808F-810E. 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; Mold v. Hayton, Newson [2000] MLC 207, CA. 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; Long v. Tolchard & Sons Ltd., per Roch LJ at P26. 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. In Stubbings v. Webb, for example, the matter was dealt with by the master and the judge as a preliminary issue on affidavit evidence, without cross-examination but with the benefit of discovery. As Bingham LJ commented when the matter was before the Court of Appeal, at 202H-203A: "This produces an unusual situation, since the facts pleaded by the plaintiff cannot for purposes of this proceeding be assumed to be true, and they are not common ground. In particular, and this must be emphasised, the Webbs deny the allegations against them. We must, it would seem, like the judge, draw such provisional inferences from the evidence before us as appear to be fair." It may not always be feasible or produce savings in time and cost for the parties to deal with the matter by way of preliminary hearing, but a judge should strain to do so wherever possible. 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] 213, CA, at 224d-g, 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." We should not leave those remarks of Parker LJ without noting that they were qualified in Nash v. Eli Lilly & Co, at 804E, where this Court said that there could be instances of weak claims where disapplication of the limitation provision could cause defendants considerable prejudice in putting them to the trouble and expense of successfully defending them and then not being able to recover costs against impecunious claimants.” "This produces an unusual situation, since the facts pleaded by the plaintiff cannot for purposes of this proceeding be assumed to be true, and they are not common ground. In particular, and this must be emphasised, the Webbs deny the allegations against them. We must, it would seem, like the judge, draw such provisional inferences from the evidence before us as appear to be fair." " … 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."

[24]In the Nugent Care Society case the Court of Appeal considered that these “starting points”, as they were described in Bryn Alyn, remained valid subject to a number of qualifications: i) As to (ii), the exceptional indulgence point, the exercise of the discretion is only exceptional because otherwise the claim would be time-barred. The discretion is wide (paragraph 20). ii) As to (vi), namely the desirability of determining limitation as a preliminary issue, there would be many cases where it would not be feasible to determine limitation as a preliminary issue (paragraph 21), Lord Clarke of Stone-cum-Ebony MR, who gave the judgment of the court, continued:

“ … He or she may well conclude that it is desirable that such oral evidence as is available should be heard because the strength of the claimant's evidence seems to us to be relevant to the way in which the discretion should be exercised. We entirely agree with the point made at vii) that, 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. 22. That is however simply to emphasise the order in which the judge should determine the issues. When he or she is considering the cogency of the claimant's case, the oral evidence may be extremely valuable because it may throw light both on the prejudice suffered by the defendant and on the extent to which the claimant was reasonably inhibited in commencing proceedings. …” iii) As to (viii), referring to the judgments in the Cain case, Parker LJ was intending to say “that the prejudice to the defendant of losing the limitation defence is not the relevant prejudice to be addressed. The prejudice to be addressed is that which affects the defendant’s ability to defend.”

[25]One focus of debate before us was on the underlined words from the quotation from paragraph 21 of the judgment of the Master of the Rolls. The judge set out the underlined words in full and then indicated “when I come to deal with the issue of limitation I will exercise my discretion in accordance with the observations of Lord Clarke MR.” Mr Norris submits that in doing so the judge took the underlined passage too literally and out of context. The fact that he had found against the JL in respect of all the period following his leaving university in 1990 was important for a number of reasons. First, it meant that the operative delay was not between nine and 23 years, but rather between 21 and 23 years. Secondly, the finding highlighted the substantial disadvantage suffered by the appellants. The burden of disproving consent rested upon them. There were statements from Fr Laundy that all he did was consensual. The judge accepted that for the majority of the alleged assaults despite JL’s evidence. The disadvantage of not having Fr Laundy’s detailed evidence was substantial indeed, particularly when the case turned on what appeared to be consensual acts rendered non-consensual by what was said to be emotional manipulation stretching back years before the events themselves. Thirdly, it resulted in illogicality in the approach to the reasons for delay. Matters said to be understandable reasons for delay could not have been, in light of the findings made by the judge at the same time.

[26]The logical fallacy which Lord Clarke MR was concerned with in paragraph 21 of the Nugent Care Society case and Auld LJ in paragraph 74(vii) of the Bryn Alyn casewas proceeding from a finding on the (necessarily partial) evidence heard that the claimant should succeed on the merits to the conclusion that it would be equitable to disapply the limitation period. That would be to overlook the possibility that, had the defendant been in a position to deploy evidence now lost to him, the outcome might have been different. The same logical fallacy is most unlikely to apply in the reverse situation, especially when the case depends upon the reliability of the claimant himself. That may be illustrated by a simple example. A claimant sues for personal injury ten years after an alleged accident and seeks an order to disapply the limitation period of three years. The defendant has lost its witnesses and records, but advances a defence that the accident did not occur. The judge concludes, without the lost evidence, that indeed the accident did not occur. The burden is on the claimant to prove that it would be equitable to disapply the limitation period having regard to the balance of prejudice. In those circumstances he would not be able to do so. There would be no purpose in extending the limitation period and it would not be equitable to do so. Similarly, a full exploration at trial of, for example, the claimant’s reasons for delay may enable the judge to reach firm conclusions which could have been no more than provisional had limitation been resolved as a preliminary issue.

[27]There is clear authority for this approach in the judgment of Thomas LJ (as he then was) in Raggett v Society of Jesus Trust of 1929

[2010] EWCA Civ 1002

. The complaint made by the appellants was that the judge had decided the abuse in question had occurred and had then disapplied the limitation period. They advanced a literal argument based upon the words of Lord Clarke MR that because she structured her judgment by dealing with her findings of fact first and only then considered limitation, she had erred. Unsurprisingly, that argument did not prosper. It is not realistic to shut one’s eyes to findings and conclusions reached following a full trial. It is what is done with them in the context of the substance of the reasons for the limitation decision that matters. Thomas LJ, with whom Toulson and Mummery LJ agreed, indicated in paragraph 19 that the judge “did not adopt the approach … that she was satisfied that Father Spencer had in fact sexually abused the claimant and therefore there could be no prejudice.” He continued:

“20. When this court observed that the judge must decide the issue on the exercise of the discretion under s.33 before reaching the conclusions on liability, it was enjoining a judge to decide the s.33 question on the basis, not of the finding that the abuse had occurred, but on an overall assessment, including the cogency of the evidence and the potential effect of the delay on it.”

[28]I accept the submission that the judge erred in quoting the extract from paragraph 21 of judgment in the Nugent Care Society case, and stating that he would apply it, implicitly irrespective of any factual findings he made. The findings and conclusions arising from his rejection of the claim for the bulk of the period and, more generally, 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. To determine the effect of that error on the judge’s conclusion on limitation, it is necessary to consider in more detail his analysis of the factors that weighed both ways and his factual conclusions.

[29]The judge informed his analysis with a factual summary largely based upon JL’s account of events together with an assessment of his reliability. JL suggested that Fr Laundy had “groomed him from an early age” and that he genuinely believed in the claim as presented, namely that all his difficulties in life were the result of Fr Laundy’s actions. The judge recognised that JL was shown to have been deliberately misleading in descriptions he had given in his business life and the way he promoted himself. There was a “tendency to inaccuracy and overstatement”. He had misled the treating counsellors at Lifeworks, and his medical experts, by saying that the abuse started at thirteen (an allegation which formed no part of the claim). The judge found that JL understated the number of visits he made to Fr Laundy when he was an adult. The visits themselves were voluntary and he chose to stay over from time to time. JL had told his medical expert that the sexual incidents occurred “at intervals of a few years” when they were in fact much more frequent, indeed regular. He concluded that JL’s evidence “as to the supposed effect of abuse on his business generally to be unconvincing.” Nonetheless, “… on the whole I found him to be a credible witness and, generally, I accept his account of the history supported as it is, to an extent, by other evidence including the convictions of Father Laundy. However, I do find that the claimant, whilst on the whole a truthful witness, had and has a tendency to embellish and exaggerate details of events when describing them so as to emphasise the points he was and is seeking to make.”

[30]The judge accepted JL’s account of how he saw Fr Laundy as a father figure and that, when he was a small boy, he felt that he was loved and valued. He was able to talk freely to Fr Laundy in a way which was not possible at home. He described sexualised conversation and events involving both himself and other boys which might have had sexual connotations. Fr Laundy was the biggest influence on his life before he went to university. The judge accepted that JL was emotionally vulnerable as a boy and that Fr Laundy was emotionally important to him, indeed a father figure. The judge rejected part of JL’s account relating to the first sexual incident, namely that he was incapacitated through drink:

“[JL visited] Father Laundy of his own volition on a regular basis knowing that such visits would be likely to involve the type of sexual activity … that he had become used to.”

[31]JL’s case was that he “was vulnerable and that Fr Laundy took advantage of that vulnerability and engineered the relationship with [him] in such a way that [he] grew to love him and trust him.” JL was prepared to go along with what Fr Laundy wanted because he did not want to be rejected. For that reason the sexual contact was not consensual, it was the result of manipulation and grooming.

[32]The judge rejected that argument robustly for the adult years, but accepted it for the pre-university years:

“Father Laundy cynically created the claimant’s trust which led to the acceptance of the sexual act. The claimant allowed it to happen. He submitted to what Father Laundy was doing and was prepared to go along with it. That in my judgment does not amount to consent.”

In dealing with causation the judge noted that the arrest and conviction of Fr Laundy, “ … caused considerable emotional upset … with feelings of guilt, complicity and betrayal. All those emotions are no doubt intensified because of the consensual nature of the relationship. Any person in a consensual relationship is bound to experience a deep sense of betrayal when they realise that the very foundation of the relationship was due to manipulation and abuse. I also accept that so important was the relationship to the claimant that he felt a deep sense of guilt about having given a statement to the police.” Over many years, JL’s problems were largely the consequence of drink into which he descended again in 2007 for reasons unconnected with the abuse which had occurred in his pre-university years. The judge did not discount the possibility that the sexual abuse may have been a factor in his renewed drinking (there had been a longstanding problem) but it was not significant. He continued:

“I accept, however, that it was at Lifeworks the abuse and the effects of it were identified and discussed (amongst other things), but I am not persuaded that the abuse had a significant impact on his need to attend Lifeworks in the first place.”

After a careful review of the expert evidence, the judge rejected the suggestion that JL’s personal difficulties were the result of the abuse.

[33]The judge’s consideration of the limitation issue began with section 33(3)(a) – the length and reasons for delay. He found that the reason for the delay between 1988 (when JL reached 21) and 1999 was “plausible and reasonable” because JL believed that his relationship with Fr Laundy was genuine and mutual. In other words, it was not until late 1999 that JL appreciated that he was not the only person with whom there had been sexual contact and he understood that he had been manipulated. The judge had “a little more difficulty” with the period thereafter. JL’s case was that he “knew of no ill-effects upon [him] of the abuse until [he] left Lifeworks in 2010.” Of course, the abuse he was referring to included the period in his adulthood when there was no “abuse”. This contradicted the statement he had made to the police in 2000 that there were no ill-effects, but he said that earlier statement was not true. He felt betrayed when he discovered Fr Laundy’s other activities. The judge accepted that it was only during his time at Lifeworks that he appreciated “the possible effects of abuse”.

[34]The judge turned to section 33(3)(b) – the impact of delay on the evidence. He accepted that the delay would have an impact on the cogency of the evidence, particularly because “the real issue in the case is the nature of a relationship which was developing between 1975 and 1984 and the extent to which that affected the claimant’s ability to give real consent to subsequent events.” He went on to indicate that even were Fr Laundy still alive the detailed evidence of events during that period would have been profoundly affected, and that other evidence might well have become unavailable. That prejudice was compounded by Fr Laundy’s death. He noted the limit of Fr Laundy’s evidence in his unsigned witness statement. The defendants submitted that the inability to explore the detail of the early years and the basis of the guilty pleas was critical. It was the claimant’s suggestion that the convictions “largely, if not entirely, meet these objections” and that, in interview with Monsignor Moth, Fr Laundy did not suggest that all the convictions were wrong. The judge continued by noting that the defendants had been able to call some evidence (which I note went to the issues of vicarious liability and apportionment). He indicated that the remaining specific matters identified in section 33(3) added little but in connection with section 33(3)(e) – the extent to which JL acted promptly – accepted that he could have brought the claim when Fr Laundy was convicted but that it was his treatment at Lifeworks that enabled him to do so. He pulled together his conclusions on this issue in paragraphs 64 and 65 of the judgment:

“I take into account the evidence that I have heard and seen and what evidence might have been available had the trial taken place earlier. In my opinion the convictions of Father Laundy are important. There is no doubt that the court would have been in a position to make more confident findings about the correctness of those convictions if it had heard evidence from Father Laundy. Whether that would have assisted the defendants is not the point. … The reality is that the defendants faced a heavy evidential burden in displacing the factual basis of the convictions. The extent to which Father Laundy’s evidence would have assisted in that is unknown. I find the arguments to be finely balanced in this case, the reasons for the delay in this case are on the whole understandable given the claimant’s psychological state and that it was not until he underwent the Lifeworks therapy that he felt able to address the issues and make a claim. On the other hand, the effect of the delay on the cogency of the evidence is clear given the lapse of time since the events in question and the death of Father Laundy. I reach my conclusion having heard the evidence that was presented and acknowledging the evidence I have not had. In all the circumstances, and given the nature of the case, I consider that it is both just and equitable for this action to proceed against both defendants. I therefore direct that the provisions of section 11 of the 1980 Act should not apply to this action.”

[35]The judge concluded that the delay he was concerned with was between nine and 23 years. In the light of his finding that there were no assaults after September 1987, the primary limitation period for all the incidents which occurred up to JL’s eighteenth birthday (December 1985) expired three years later in December 1988. The last pre-university incident occurred in September 1987, in respect of which the primary limitation period expired in September 1990. It follows that the delay until the issue of proceedings in November 2011 was between 21 and 23 years, and not as little as nine years. In my opinion, the finding that there was no trespass to the person in JL’s adulthood should have been recognised in fixing the length of delay for the purposes of section 33(1)(a).

[36]In my view, the approach to JL’s reasons for delay in bringing these proceedings should also have been conditioned by the wholesale rejection of his claim for the period which followed his return from university. Whatever view might have been taken about the delay in seeking advice and launching proceedings until Fr Laundy’s arrest and prosecution in 1999 and 2000, from the time he made statements to the police in support of the prosecution JL was asserting that he had been the victim of abuse. In the usual way he stated to the police that he was willing to attend court to give evidence. The judge was just persuaded that the delay that followed until JL concluded his course with Lifeworks in 2010 was understandable. He referred to JL’s psychological state and that the impact of the Lifeworks therapy. JL’s case was that it was only through the mediation of those at Lifeworks that he appreciated the damage that the abuse had done to him and, as he contended, caused losses running to half a million pounds. Lifeworks, in encouraging JL in that belief, proceeded by accepting his account of events. I have noted the two striking features of the account given by JL to Lifeworks which were wrong. The first was his suggestion, repeated to his medical expert, that Fr Laundy had sexually abused him from thirteen. The second that throughout his adulthood until he was 31 he was the victim of non-consensual sexual assaults. There were many problems with JL’s contention that, in any broader sense, his difficulties in life were the result of his relationship with Fr Laundy and his sense of betrayal when he discovered that he had not been “the only one”. The judge did not accept that either. But the problem with reliance upon a revelatory experience when at Lifeworks as a good reason for not having sued earlier, is that it was based upon false premises. The circumstances were far removed from those contemplated by Lord Hoffmann in the A v Hoare case as being relevant when considering section 33 discretion, namely that the psychological harm caused by the abuse provided the very reason why an earlier claim had not been brought. That is not an uncommon state of affairs in cases of this nature; but it is not this case. The reality is that, until the criminal prosecution, JL delayed in bringing any claim relating to the pre-university years because he believed that he was in a relationship with Fr Laundy which was unique. Even when that realisation was shattered JL, whilst willing to stand in a Crown Court and give evidence against Fr Laundy, did not wish to bring proceedings.

[37]In respectful disagreement with the judge, I am unable to accept that JL has provided an understandable, still less good, reason for the delay which followed the arrest and prosecution of Fr Laundy.

[38]The finding that the sexual relationship as an adult was consensual would also colour the approach to the assessment of the reason for not taking legal advice and litigating earlier in respect of the pre-university events. It is certainly understandable why an adult in a consensual sexual relationship with a person whom he reveres but who, on this hypothesis, assaulted him as an adolescent would be reluctant to take action. Such a course would inevitably destroy the relationship held dear. The reason for delay during that period may not be as excusable as would be the case were psychological sequelae of an assault or assaults responsible, but I would not demur from the judge’s conclusion that this period of delay was “plausible”.

[39]In my opinion, the overall delay in bringing the proceedings relating to the mid to late 80s had a profound impact on the evidence and the ability of the Archbishop and the Scouts to discharge the burden upon them to show that Fr Laundy was wrongly convicted. Mr Levinson submits that the convictions were important. They provided strong evidence that Fr Laundy committed the offences (including those alleged between 1990 and 1999) and the evidence to undermine them was weak. In making that submission he reminds us of Lord Brown’s observations in paragraph 86 of the A v Hoare case (quoted above) that if there has been a conviction, I paraphrase, the problems of investigating antique events may be of less consequence. In the overwhelming majority of such cases that may be so because the conviction proves the tort. That is not to say that there might be great difficulty in exploring the consequences of an assault, or series of assaults, and other reasons why the limitation period should not be disapplied.

[40]This case is different. The question of consent was at the heart of the defence run by both appellants and was supported by evidence from Fr Laundy. Even without any oral evidence from Fr Laundy, or any detail in a witness statement, the judge concluded that the appellants had discharged the burden in proving that the sexual touching was consensual during JL’s adulthood. On his behalf, it is submitted that Fr Laundy’s evidence would have added little, if anything, on the question of consent. I regard that submission as being unrealistic. Consent is the live issue in countless allegations of criminal sexual misconduct in respect of which juries hear both sides of the story, and ordinarily need to hear both sides to make the necessary judgments. Whilst the fact of sexual touching would not have been in issue, the immediate circumstances in which each event occurred would have been highly material to the question whether that touching was consensual. Moreover, and importantly, JL’s case was a general one that his dealings with Fr Laundy over a period of about eight years before the assaults began resulted in his will being overborne. The court was deprived of evidence from Fr Laundy relating to that matter altogether, as well as other evidence that would possibly have been available if the trial had come on much earlier. The absence of Fr Laundy, in the context of a reverse burden of proof, was highly prejudicial to the appellants. In my view this is all the more apparent in view of the findings of the judge that JL was in many respects an unreliable witness, prone to exaggeration and with a number of significant inaccuracies apparent in the core accounts he had given.

Conclusion

[41]Section 33 enjoins the court to have regard to the balance of prejudice to the parties in determining whether it would be equitable to allow the action to proceed. To my mind the prejudice to the appellants in disapplying the limitation period, in the circumstances that I have sought to describe, significantly outweighed any which attached to JL in not doing so. With respect to the judge, he took into account too short a period of delay and did not weigh the adverse findings he made against JL in considering the range of matters which informed the decision. For these reasons I would allow the appeal, set aside the order made by the judge and enter judgment for the Archbishop and the Scout Association.

Sir Ernest Ryder, Senior President of Tribunals

[42]I agree that the appeal should be allowed for the reasons given by both Burnett LJ and Lewison LJ. The judge’s misunderstanding of Nugent Care might have been avoided if he had adopted the approach of Thomas LJ (as he then was) in Raggett v Society of Jesus Trust of 1929 at [20] cited by my Lord, Burnett LJ, at [27]. It is simply unreal to fail to appreciate adverse findings and conclusions reached at the end of a trial where limitation is in issue i.e. where it has not been dealt with as a preliminary issue. The correct approach is to adopt an overall assessment of the evidence and the effect of the delay on the same. The overall assessment of the evidence necessarily in this case includes the adverse findings that the judge made against JL.

[43]I agree that the appeal should be allowed for the reasons given by Burnett LJ. There was, to my mind, an Alice in Wonderland quality about reading a judgment in which the limitation period was disapplied on the basis of a view of the facts that was far removed from the facts that the judge actually found. As Burnett LJ has shown the judge’s approach was based on a misunderstanding of Nugent Care.

[44]Going back to the decision of this court in Bryn Alan, Auld LJ said:

“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.” (Emphasis added)

[45]The italicised words are, in my judgment, the rationale for the principle. But the striking fact in this case is that the Defendants did prove the negative, for the bulk of JL’s claim. Where a Defendant has proved the negative it makes no sense to me to approach the question of disapplying the limitation period on the artificial basis that the claimant may have a good case, when the fact is that he does not.

Cited in 13 later judgments

and 4 more of the most senior