F And S vTH [2016] EWHC 1605 (QB)

[2016] EWHC 1605 (QB)Case No 2MA90135
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 1 st July 2016
Before
The Honourable Mr Justice Langstaff
Between
F and SClaimantsTHDefendants
Elizabeth-Ann Gumbel QC (instructed by PLS Solicitors) for ClaimantsNicholas Fewtrell (instructed by Hill Dickinson LLP) for DefendantsHearing Hearing dates: 23 rd– 26 th February 2016
JUDGMENT
[1]The Claimants wish to claim damages as victims of sexual abuse they claim was perpetrated by Father M between 1979 and 1983 in the case of F, and from around 1983 (and probably after the abuse of F) until perhaps 1986 in the case of S.[2]The Defendants are sued as personal representatives of the Bishop then responsible for the diocese in which Father M worked as a priest. It is accepted (in effect on behalf of the local Roman Catholic Church) that he is vicariously liable for such acts of abuse as may be established. However, it is not accepted that any such acts can now be proved to the requisite standard (that of the balance of probabilities): at least 30 years have passed since the last acts of abuse may have occurred, and this is said to have rendered testimony unreliable and also now renders it difficult fairly to assess such testimony as can be given. It is accepted that the primary limitation period has expired, and that I have an unfettered discretion whether to extend it or not by exercise of the powers within s.33 of the Limitation Act. I am asked by the Claimants to extend time, and by the Defendant not to do so.[3]Should I extend time, and hold that they were the victims of the abuse claimed or some of it, the Claimants seek damages not only for the assaults committed against them and the pain, suffering and loss of amenity they caused (in particular, giving rise in each case to post-traumatic stress disorder (“PTSD”) but also for consequential financial loss. In particular, both claim substantial compensation for the dislocation caused to their employment prospects.

The Law

[4]The Limitation Act 1980 provides by section 33 as follows, so far as material: “(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 or 11A or 12 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, by section 11A or (as the case may be) by section 12;(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. …. (5) In a … case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit. …. (7) In this section “the court” means the court in which the action has been brought.” (a) the provisions of section 11 or 11A or 12 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, by section 11A or (as the case may be) by section 12; (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. ….[5]It is common ground in applying section 33 that the primary time limit is provided for by section 11, and is a period of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured (section 11(4)). The date of knowledge is a reference to the date on which the Claimant first had knowledge of the 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; and (c) the identity of 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.”[6]In Stubbings v Webb [1993] AC 498, HL(E), the House of Lords unanimously decided that section 11 did not apply to a case of deliberate assault, including acts of indecent assault: an act for such an intentional trespass was not one for “negligence, nuisance or breach of duty”.[7]By its decision in A v Hoare and others [2008] 1 AC 844, [2008] UK HL6 the House of Lords in a unanimous judgment departed from Stubbings v Webb, in two important respects. First, the expression “negligence, nuisance or breach of duty” included a claim for an intentional assault. Second, it could be taken that the victim of a sexual assault would know that they had suffered a significant injury. Accordingly, in a case of historic sex abuse, the court should consider whether to exercise its discretion or not.

Lord Hoffmann said in his speech:

[8]- “44. This does not mean that the law regards as irrelevant the question of whether the actual Claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings. But it deals with that question under section 33, which specifically says in sub-section (3)(a) that one of the matters to be taken into account in the exercise of the discretion is “the reasons for… the delay on the part of the plaintiff”. 45. In my opinion that is the right place in which to consider it. Section 33 enables the judge to look at the matter broadly and not have to decide the highly artificial question of whether knowledge which the Claimant has in some sense suppressed counts as knowledge for the purposes of the act… ….49. …in Bryn Alyn [2003] QB1441, para 76, the Court of Appeal said that the judge in that case had gone wrong in giving undue weight to his conclusion that “the Claimants’ reasons for delay were a product of alleged abuse and that, accordingly, it would be unjust to deprive them of a remedy”. These matters, said the Court of Appeal were more appropriately considered under Section 14. I am of precisely the opposite opinion, and if your Lordships share my view, the approach to the discretion will have to change. In Horton v Sadler [2007] 1AC 307 the House rejected a submission that section 33 should be confined to a residual class of cases… it reaffirmed the decision of the Court of Appeal in Firman v Ellis [1978] QB 886, holding that the discretion is unfettered, the judge is expressly enjoined by sub-section (3) (a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the Claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.50. That, of course, is not the only matter to which he must have regard. As the Law Commission said in para. 4.31 of their Report:
“We do have some concerns that claims may be brought many years after the events on which the claimants’ cause of action is based, at a time when it is difficult for a fair trial to be given to the claimants’ allegations. However, subject to the provision on disability, the victim is likely to have immediate knowledge of the relevant facts, so that the primary limitation period expires three years after majority. Although the court will have a discretion to disapply the primary limitation period, it must consider whether the defendant’s ability to defend the claim will be prejudiced due to the lapse of time since the events giving rise to the cause of action.” 51. Apart from the reference to disability, these observations seem to me to be as valid in relation to the exercise of the discretion under the present law as under the system proposed by the [Law Commission].” …. “We do have some concerns that claims may be brought many years after the events on which the claimants’ cause of action is based, at a time when it is difficult for a fair trial to be given to the claimants’ allegations. However, subject to the provision on disability, the victim is likely to have immediate knowledge of the relevant facts, so that the primary limitation period expires three years after majority. Although the court will have a discretion to disapply the primary limitation period, it must consider whether the defendant’s ability to defend the claim will be prejudiced due to the lapse of time since the events giving rise to the cause of action.”
[9]Lord Hoffmann went on to say he thought the observations made by Lord Brown in his speech (from paragraph 84 and following) as to the proper exercise of the discretion were particularly valuable. In those, Lord Brown commented:- “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, first, 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. 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 then 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 possibility 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 para.36). It is not to be supposed that the exercise of the court’s section 33 discretion will invariably replicate that decision.88. My third and final comment relates most directly to A’s appeal and it is this. The definition of “significant injury” in section 14(2) refers to the justifiability of bringing proceedings against a defendant “able to satisfy a judgment”. That surely is unsurprising. It would not ordinarily be sensible to an indigent defendant. How then should the court approach the exercise of its section 33 discretion in a case like A where suddenly, after many years, the prospective defendant becomes rich? The House is not of course, itself exercising this discretion. I would, however, suggest that it would be most unfortunate if people felt obliged (often at public expense) to bring proceedings for sexual abuse against indigent defendants simply with a view to their possible future enforcement. (Judgments, although interest bearing for only six years, are enforceable without limit of time.) The judgment in Hoare was delivered on January 30th 2008. Appellate cases followed shortly after (for instance AB and Others v the Nugent Care Society [2008] EWCA Civ 795) which recognised the way in which the decision in Hoare had changed the legal landscape.”[10]As will become apparent when I turn to the facts of the present case, it may be relevant to the exercise of discretion that a claimant seeking to proceed with a claim between 1993 when Stubbings v Webb was decided and 30th January 2008, when Hoare superseded it, would have expected to be met with a defence that the act claimed was barred by limitation, and would have understood that the defence would be bound to succeed unless the House of Lords could be persuaded to over-rule its own earlier decision: at any rate, this would be apparent if the claimant in question had sought advice about it. He would have been told that this would be a lot to expect. Further, until the decisions of the House of Lords in Lister v Hesley Hall he would realistically have anticipated a court refusing to hold an institution such as the Catholic Church liable vicariously for acts of its priests which the Church did not officially condone. Again, it might be expected that a potential claimant would discover this if he made enquiry of a reasonably competent lawyer.[11]In the present case, it is not disputed that if there is evidence sufficient to prove the Claimants’ allegations that they were abused by Father M, and that a trial to establish this could fairly be held after this passage of time, the Defendant in this case would be vicariously liable. Mr Fewtrell for the Defendant submits the evidence is insufficiently cogent, but undoubtedly a, if not the, central issue is that of the exercise of discretion, and the sufficiency of the evidence overlaps with the question how discretion should be exercised to the extent that the evidence has become unsatisfactory or less cogent because of the passage of time.[12]The discretion itself is to be exercised in accordance with the principles derived from Hoare, in the knowledge that the discretion is unfettered (Horton v Sadler). Though I was shown the decision of the House of Lords in the Scottish appeal of AS v Poor Sisters of Nazareth [2008] UKHL32, in which the House upheld the entitlement of the Inner House of the Court of Session to uphold the Lord Ordinary’s exercise of the discretion in favour of the Respondents, with the consequence that each claim was dismissed, since the delay in bringing proceedings had prejudiced the Respondents and there had been actual loss of material evidence, and this was sufficient prejudice in itself for not allowing the actions to be brought, I do not think this decision adds to the principles which I have to apply. It was, in effect, an example of the operation of those principles, and was consistent with that taken in the High Court of Australia, where in Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (to which I was also referred) McHugh J (in a court which similarly upheld the original exercise of discretion) commented:
“…the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”
[13]I simply take from this that for good reasons, which include potential prejudice or delay which render a Defendant unable fairly to defend a case, discretion may be exercised so as to ensure he does not have to do so. But it is of the nature of discretion that it may also be exercised so as to permit a claim to continue, having balanced the factors which are thought relevant.[14]In B v Nugent Care Society [2010] 1WLR 516, C.A. it was recognised that the starting points for the exercise of discretion on a case of historic sex abuse as set out in Bryn Alyn (see paragraph 4 of Bryn Alyn, referred to at paragraph 20 of B v Nugent Care Society) remain valid, though there are now likely (paragraph 21) to be many cases in which a Judge might well conclude that it is desirable to hear such oral evidence as is available, since the strength of the claimants’ evidence is relevant to the way in which the discretion should be exercised. At paragraph 22 Lord Clarke, MR said:- “22. When [a judge] 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. Thus, if a claimant’s case is beset by inconsistencies and the claimant shows himself in evidence to be unreliable, the court may conclude that the delay is likely to prejudice the defendant in the way contemplated in Nash v Ely Lilly and Co. [1993] WLR782, namely by being put to the trouble and expense of successfully defending proceedings and then not being able to recover costs against impecunious claimants. In those circumstances, viewing the matter more broadly, as A v Hoare enjoins the court to do, it may well be that it would not be equitable to allow the claimant to proceed. On the other hand, if the evidence of the claimant is compelling and cogent that the abuse occurred, and it is said that it was the abuse that inhibited him from commencing proceedings, that is surely a compelling point in favour of the claimant. ”[15]Lord Clarke MR went on to say (paragraph 23) that the prejudice to the defendant of losing a limitation defence was not the relevant prejudice to be addressed. The prejudice to be addressed was that which affected the defendant’s ability to defend. Clearly, he accepted, the strength of the claimant’s case was relevant to that.[16]In paragraph 24 Lord Clarke quoted Smith LJ’s judgment from Cain v Francis and McKay v Hamlani [2009] QB 754 at paragraph 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.”[17]Lord Clarke MR went on specifically to accept at paragraph 25 that considering prejudice to the defendant involved considering what evidence might have been available to the defendant if a trial had taken place earlier, or it had learnt of the claim earlier: it was not sufficient simply to hear the evidence of the claimant, and indeed any other evidence now available, and decide the issue of limitation on that basis without considering what evidence would or might have been available at an earlier stage.

The Present Cases

[18]The cases of F and S, though brought together in this claim by the same legal representatives and each concerning the same priest, are separate: it is entirely possible that one claim might succeed and the other fail. Considering all the circumstances of the cases where they concern different personalities, who had different personal histories, claim to have suffered abuse at different times and that it has affected them in similar but slightly different ways means that I must bear in mind that they do not necessarily stand or fall together.

The Alleged Abuse: the case of F

[19]F was born on 7th March 1967. His brother S was born on 15th December 1969. When F was 6, and S approaching 5, after their parents separated, the Claimants moved with their mother from Devon where they had lived to Wigan. The change was disturbing to them. F became subject to bullying by others in part because of his earlier rural upbringing. He began in the view of an expert psychiatrist (Professor Maden, who reported in writing on the instructions of the Claimants, though not called to give evidence orally) to develop a personality disorder (affecting his motivation and attitude). He described to the Professor that he began to struggle with his school work, suffering (he says) from an unrecognised but real dyslexia, and began to truant. He described feeling put down by teachers due to his written work, and had verbal (and, sometimes, more physical) clashes with them. When not at school he did odd jobs such as washing cars, mowing lawns and raking leaves for money (as he reported to Doctor Roychowdhury, a psychiatrist instructed by the Defendant, who similarly did not give oral evidence).[20]In evidence, F told me that he had come to selling drugs, and that although he did not agree that stealing was a “way of life” for him and his brother, this was “true to a degree”. His mother was struggling to manage him when he began in the secondary school. He felt alienated from school.[21]F’s mother was a committed Catholic. She sought the advice of the local priest (Father M) as to how she could best handle F who was in danger of running out of control. Father M provided advice and comfort. Because F was looking for work to do he went to M’s garden and asked if he could do some odd jobs. Father M then approached his mother and suggested that it might be a good opportunity for him to give some work to F, and look after him. This was an entirely understandable course of events, especially given that F lacked a male role model at home, and I accept that it happened in these general circumstances.[22]He alleges that matters developed with Father M asking F if he had started masturbating, showing him how to do it, and taking his hand and placing it on his penis to demonstrate the mechanics. On F’s case, Father M began touching the Claimant’s genitals, and this abuse by touching developed into full intercourse which happened approximately twice a week and sometimes more often.[23]Of importance for present purposes, given the observations in some of the authorities already mentioned, F says that the process of opening his mind to recall what happened was so painful that he simply avoided doing so; that there were incidents that were so troubling that his memories of them are only vague; and amongst those were the introduction by Father M of him to other priests.[24]There is no other evidence or material to support a view that other priests were involved, together, in the abuse of F; nor apart from the evidence of the two brothers is there any suggestion that Father M has been the subject of any other allegation of abuse, or for that matter of taking illicit drugs.[25]F described Father M opening packages of cannabis resin sent to him by his sister, and how he offered F cannabis, which F took since it was an opportunity to gain popularity with his school friends. F said he was encouraged to drink alcohol by Father M, and did so. Father M had a housekeeper, whom F thought was developing suspicions as to what was occurring before he left Wigan.[26]The abuse continued throughout a trip to Israel which he took with Father M, described as a pilgrimage.[27]F described an incident when he went to do some work at the house of a neighbour’s daughter, a mature woman with whom he ended up having sex, though she was of full age and he a minor. One evening, while she was asleep drunk on the couch, a young couple from across the road who used to visit the woman came over and decided with F that they should take her car for a drive. It crashed. The young girl, boyfriend, and F denied having anything to do with taking the car, or the crash, when the police turned up: but when the woman said she would press charges Father M, whom F had told of the sexual relationship, dissuaded her by threatening to reveal that she had been sleeping with a minor. Father M told F that he, Father M, now had a secret which he would keep: as to the abuse, that was a secret, too, but it was something “sacred” and “special” which should be kept between them, something that the Church knew about which is where it should be kept.[28]Just as F was about to leave school for good, he says that Father M told him that the secret was about to come out, and it would be in everyone’s best interests if F took some time away and left: he gave F £500 in cash and told him to go to London until everything had blown over. When F contacted Father M from London to tell him that the money had run out, and he needed either to come back or be given more, Father M’s tone changed, and he became dismissive. F said he became homeless, having to live in homeless shelters such as those run by the Salvation Army, or on the streets.[29]He did not return to Wigan, but obtained work as a kitchen porter. He met his first wife Tracy when he was 19: “wife” was how he described her, though they were never actually married. They had a son. On Good Friday, 24th. March 1989, when his son was still a baby, he returned home to discover her lying in their bed-sit in a pool of blood. She had been stabbed to death. The attack had been horrendous. She had something like 69 stab wounds on her body, 19 of which were inflicted after she was already dead: blood must have been flowing furiously, because both the carotid artery and the jugular vein were severed. The baby was still in the room.[30]F had been having an affair with Carol McDonald whilst Tracy was pregnant. When this came to light, the Police suspected that he was guilty of the murder. He was, he says, framed by the Police who falsely asserted that he had confessed. At trial he was found guilty, by a majority, and sentenced to prison. McDonald had secured a light sentence by pleading guilty to a charge related to the death, but without accepting that she had actually committed it on her own.[31]The fact that McDonald was the actual murderer did not immediately come to light. However, the Claimant’s appeal was allowed in 1991 on this basis by a Court presided over by the then Lord Chief Justice, Lord Lane. F had been in custody for over 2 years when he was acquitted by order of the court.[32]Not only did he have to suffer incarceration for over 2 years, for a crime he did not commit, on top of discovering his partner lying dead as I have described, but he then had to deal with further disturbing consequences arising from what had happened to him. He was told his son had been adopted whilst he was inside (he repeated the fact of adoption in his witness statement, though from his oral evidence I understood this was not the case: a custody case followed). It was however true that his son had formed such attachments to those who had been caring for him – he had been told they were his parents, brother and sister - that the Claimant, who had no stable life to offer, since he had no home, no job, no income and had spent the previous two years in gaol for murder, was not given custody. F described “having to relinquish my son” as a horrible experience. He has not seen him since.[33]He recounted that Father M contacted him on his release from prison, and offered to pay for a holiday in the Caribbean, on which they both went. Father M made further sexual advances to F during the holiday, but F rebuffed them.[34]With his life in England effectively destroyed by the murder and its aftermath, F went to America to find work. In the USA he met and formed a relationship with Doreen, who worked as a stripper. He says he was always in work. But his misfortune did not end. Whilst in the USA the house where he was living burned down. On another occasion, the car in which he was driving was forced off the road by another motorist in Pennsylvania, it went down a ravine and he sustained serious injuries. He had to have key-hole surgery on his knee, and lost his then work as a pole climber which had been remunerative, suffering a considerable loss of income. Life with Doreen was not entirely easy: she herself suffered from spinal problems.[35]He returned to England in late 1995, briefly. He said he had suffered something of a breakdown, and was looking for treatment. The breakdown was not attributed at all by him to the abuse he says he had suffered. Amongst the medical notes was one made in December 1995, which said that he had returned “following break-up of marriage, had been depressed over there, tried Prozac with no benefit, is about to start counselling course...”. This not only suggests a link between marital break-up and depression, but also gives rise to another puzzle: in evidence, F rejected the reference to a marital break-up as incorrect. At another point in his evidence he had told me he met Doreen in about 1995, and that they had gone on to have two daughters; and he was subsequently to say that he split from Doreen (who had been having an affair) round about 2008, after she could not come to terms with her thoughts of him, F, being with another man (Father M).[36]He emphasised – with much to support it – that he was not good with dates. Nonetheless, accurate sequencing is a different process from accurate dating, such that if the “marriage” referred to is that to Doreen the medical note is inconsistent with the history given to me by F: the alternative is either that the doctor’s note is an error – which is unlikely, since there would no reason for it, and the reference is linked to the given cause of the depression for which F was being treated – or that I have not been given a full and accurate account of the first few years that F spent in the USA, for some unexplained reason. If contrary to his evidence F was asserting a link between the depression and a break-up, he would be advancing a positive case as to its cause which would tend to minimise if not to exclude earlier abuse as being the reason.[37]In 1995 his brother S raised his own abuse with the Church, and says he raised it with Police. F was understandably then asked more than once by his mother if anything had happened to him during his contact with Father M. He also underwent counselling for his depression. He repeatedly denied to all that any abuse had occurred. Nor did he tell Doreen that he had been abused until some time in about 2006.[38]It was in 2006 that he first told anyone what had happened. This occurred as a result of a misunderstanding, for otherwise F had been determined to keep it to himself. He had a phone call from the UK, in which he thought he was being told that “it had all come out about what M had done”. There is a difference between the way this conversation was put in his witness statement – “I received a call from my Mother and that the church had been speaking with [S] and that they knew everything. I misunderstood this as meaning that they knew what had happened to me. Consequently I then thought that I would be unable to deny what had happened as they already knew” – and the way it was described to Professor Maden:
“…he got a call from the United Kingdom and his brother S told him about his abuse by M….When S telephoned he said a representative of the Church was present. He says his brother implied that the Church representative already knew about what had happened to the Claimant…he therefore started talking about the abuse. It was only after he had done so that he realised the church representative had not known that he had been abused…”
. It is surprising to me that such an important event as the trigger for expressing what had for so long been suppressed should be recounted to Maden in terms which are different from those given directly to the Court, as to the person speaking to F and whether a representative of the church was actually said to be there at the other end of the phone.[39]Some money was forthcoming from the Catholic Church, which was prepared to accept that F may well have been abused by Father M; it offered personal support to F, arranged for therapy from a Simon Halford, and also paid for him to learn to drive big trucks to equip him for further employment, since his previous job had ended. He looked favourably on this act of the church at the time, but has since come to think that it was designed to keep him quiet.[40]He did not take legal action in 2006, nor consult solicitors. He did however give a statement to the Police dated 20th. September 2006. Solicitors were first approached in around 2011: the claim was issued on 18th. June 2012.

The Alleged Abuse: the case of S

[41]S’s case had many similarities, though some surprising differences.[42]Like his brother, S gave assistance to Father M, such as mowing the lawn and printing a bulletin. By these means Father M slowly gained his trust. At one point he showed a gay pornographic magazine to S and asked him whether he had seen such pictures before. When S reacted negatively, he suggested that he should have done so, and had his father been around he would have shown S such images. S was 13 at the time. A little later, touching over clothes whilst watching the TV together began; there were discussions about masturbation; and physical interference (on the first occasion) after he had been persuaded to have a shower. The abuse progressed from masturbation through mutual masturbation to oral abuse. The act was described as the performance of something sacred, and as such not to be spoken of.[43]As in the case of F, S described an occasion when other priests were involved in abusing him: this was at Formby, near some sand dunes when they were standing in a circle, and he was expected to give oral sex to Father M in front of them.[44]Over time, the abuse diminished in frequency.[45]S said in his witness statement that he went to the church to speak about matters in 1991 and spoke to Monsignor Quinlan in what he described in his witness statement as Manchester Cathedral, though in evidence as Salford Cathedral, accepting that the date was not right since his recollection of dates and times was a bit hazy even if the order of events was correct. From the records available, the date seems in fact to have been 24th March 1995, at Salford.[46]S said that after leaving the Cathedral he crossed a bridge, and went to a police station which had ‘D Division’ above the door. He went into the police station and spoke to two police officers there who told him they would approach Father Quinlan. From this he believed that the police had approached the Church before the Church said anything at all to the police about what he, S, was saying. He recalled in cross examination that the police had pens and paper, and wrote as he was talking to them, though could not recall whether he had signed anything or not; and he said he had no document to show that he had been to the police station.[47]At the time he was living in Brighton. He described this as being “in an undesirable house with drug takers”. The police in Sussex tried to communicate with him in respect of the allegations he had made, but living where he did, with whom he did at the time, he did not want any attention from the police, and declined any further contact.

Fairness of a Trial

[48]Mr Fewtrell did not cross examine directly on the account of abuse which each Claimant gave. This was because Father M died in 2004. The allegations had never been put to him. There was no way of the Defendant knowing – unless it uncritically accepted the evidence of the Claimants, and that evidence was consistent – that the abuse had occurred. Directly to challenge accounts of abuse which may well have occurred ran the risk of aggravating an injury which had already been caused. The Church could not in conscience cause this further pain. This did not, however, mean that the accounts which F and S gave were accepted as true: Mr Fewtrell invited me to conclude that, after this passage of time, the evidence was insufficiently reliable to justify any findings that the abuse had probably occurred, even if it mighthave happened.[49]I understand this approach. However, there are features of the accounts which are unusual and might have merited close examination to see if, and to what extent, they stood up to close scrutiny: for instance the account given by F about his under age relationship with an older woman, and the blackmail of her by Father M; why it should be that though regarding Father M as having let him down after he went to London, when he dismissively rejected a request for assistance, and at a time when he was fully adult, he should travel to the Caribbean on holiday with him; the shadowy accounts by both brothers of the involvement by Father M of others; and the unexpected dissonance between the account given by F which involved repeated and regular incidents each week of anal intercourse, set against the behaviour of Father M toward S, as S recounts it, which was to abuse S orally save for one occasion only when the intercourse was anal. I must bear these circumstances in mind in my overall evaluation of the case, but cannot without close testing of the evidence take them significantly into account when considering whether the evidence now available is a reliable basis for a fair conclusion as between the parties.[50]I shall examine first the reliability of the evidence which is available, despite the passage of years, subject to the limitations I have just expressed, and then turn to consider evidence I would have expected to be available which may no longer be because of the time which has passed.[51]In the case of both F and S both psychiatrists have noted from medical documentation relating to periods since the late 1970s that it is clear that both F and S had significant personal difficulties prior to the time that any abuse could on their cases have been committed. Both had had significant involvement in criminal behaviour, in drug dealing (F) and drug taking to the extent of suffering from Cannabis dependent syndrome (S), and each is a poor historian in several respects – F found dates difficult; S was the same, and had also suffered from black outs and loss of memory apparently unconnected directly with the abuse.[52]Both have expressed concern that their accounts might be rejected because of the criminality in their past, either upon the basis that it showed a tendency to dishonesty (in F’s case handling stolen goods - he declined to answer in respect of whether this included jewellery) and in respect of S of burglary from both domestic and non-domestic premises, theft, obtaining property by deception, and including what he recalled as fraud in respect of stealing from his mother.[53]These features must however be kept in perspective. The early childhood of both Claimants was dislocated. Rebelling against societal norms was perhaps to be expected. Both lived for a while in a milieu in which petty crime might not have been unexpected. The fact that the two brothers might have been going off the rails as their mother saw it could very well have given rise to an opportunity to someone in Father M’s position to abuse both their trust and their bodies. It would not be surprising if, associated with that, or in consequence of it, some crimes were committed by one or other of them. I do not, therefore, regard the criminal records of each as having any great weight for present purposes, though they have some. What is more important, in my view, is whether at court each was sufficiently frank about their past as to give confidence that their account generally could be relied upon.

Difficulties in the case of F

[54]F was, to my mind, the more impressive of the two brothers in giving evidence. However, though the claim concerns sexual abuse, the claim is one for compensation. He put forward a schedule of special damage which initially came to a total of £353,704.60. It was revised in an updated schedule in 2015 to amount to £437,777.90. This included a past loss of earnings just short of £250,000. This was claimed on the basis that if he had not been abused he would in all probability have had a gross income which corresponded with average UK earnings. In support of this the schedule set out the average earnings for each tax year since the Claimant commenced employment, and set against it the income he had actually earned in that year. It claimed the balance. No documentation was provided to vouch any of the figures in respect of any of the income earned (save tax records in respect of one year only in the case of F). It became evident in cross examination that F could not sustain these figures. For instance, it was said that he earned £3,000.53 in the tax year 1985/1986. No document supports this. The fact that the figure descends to pence demonstrates the spurious accuracy being asserted. Between 1993-4 and 1994-5 the income earned was precisely the same in each year (£9,984). This is highly unlikely, particularly if the amounts have to be recollected from memory. Many years are simply labelled “USA” as if no income were forthcoming for the Claimant whilst he was in the USA during the year in question. The income attributed to 2000-1 (£11,700) was less than that which the Claimant had earned in 1996-7, which again was improbable particularly since the consistent evidence of the Claimant was that he had always kept himself busy in work.[55]The thrust of Mr Fewtrell’s cross examination was that the schedule was a fiction. I have little doubt that is the case. Indeed, the point was recognised on behalf of both Claimants by Ms Gumbel QC who, on the morning after the cross examination in respect of the schedule of special damage in respect of F had concluded withdrew any reliance upon the detail of the schedule. Instead of a claim for over £400,000 in respect of F, and a similar calculation, which I suspect would have been exposed in the same way in respect of S, and which came to a total of over £800,000, she invited me to make the assumption that the abuse established must have been responsible for at least some damage to the ability of the Claimant to earn an income, and invited me to assess this as £25,000 in respect of the first Claimant, and £40,000 in respect of the second, for both past and future loss of earnings. She submitted those were more realistic figures than the figures which those assisting the Claimant had attempted to produce.[56]F said that the figures were not his. The difficulty for him is that the claim is his. The documentation was verified with a statement of truth. I must take it that the schedule was prepared on his instructions and in accordance with them, and put forward with his authority. I had no evidence it was not.[57]I cannot ignore the deliberate putting forward of a claim which was grossly inflated, if indeed there was a claim at all, on a basis which was spurious, as though it were true, and doing so in not just one but, in effect, two schedules prepared a couple of years apart. It gives me no confidence in the honesty and reliability of the claim as a whole.[58]There was further cause for concern as to the accuracy and reliability of the Claimant’s account arising out of his evidence. Though I can understand why, in social situations, he might fight shy of admitting the extent of his criminality, he was surprisingly reluctant to admit it when cross examined. He was equivocal as to a number of matters – one, but not the only example was his saying that at the time of the abuse, and just after, he thought that he had done nothing wrong, yet he went on to say that he thought at the time that he was “to blame”. The accounts given of the conversation which prompted him to reveal the abuse varied (see the contrast in the accounts set out above), and I am cautious about accepting the account that F thought that “the cat was out of the bag” when on his account he asked no questions about what he was being told, yet had spent, on his account, a life time of being deliberately silent and careful about it.[59]What the Claimant did not say, and what he did not provide, was also a concern to me. In respect of the time he said he was in London, after leaving Wigan, he did not mention in his witness statement that he had worked for significant periods in Devon and Bristol, and had spent some time seeking out his father in Bideford, though there was no particular secret about this: however, the impression from a first reading of the witness statement might be thought to be that of someone down on his uppers and cast adrift in London when that was not exactly the case. Mr Fewtrell submitted that his evidence was on occasions unreliable and inconsistent. He had a proper basis for doing so. For instance – though there were a number of examples - he told both experts that he had stolen cars, but denied that in evidence despite having had a conviction for taking and driving away a motor vehicle. The statement he made to police was inconsistent with his witness statement as to his departure to, and time in, London. He denied having any medical treatment in the United States, though that was inconsistent with the documents: he had had Prozac there.[60]As to the evidence that might have been advanced to the court, the Claimants’ mother was not put forward to give evidence. Nor was any attempt made, if it still could be, to verify the account that Father M received cannabis regularly through the post, and smoked it at home: his house-keeper was said to be suspicious of his activities, but this went no further. His sisters were said to have sent it to him. No evidence from them was made available. Nor was there any material which might have suggested that Father M had been involved in any other form of abuse, nor material to support F’s allegations that others too had been involved by Father M in his abuse.[61]The psychiatric experts both see no reason intrinsic to F’s account to doubt the evidence of abuse which they have been given. They do not, however, have the advantage, as I have had, of seeing and hearing the Claimants cross examined. They do not have the significant reasons which I have to doubt the reliability and accuracy of some, at any rate, of what I have been told. Yet – inevitably – their reports are based upon what the Claimants each had to say to them.[62]Professor Maden said in respect of F:
“the Claimant is a man of good character and I had no general reason to doubt his credibility”
. The Professor is a forensic psychiatrist. By use of those words, no doubt, he meant that the Claimant had never actually been convicted – a point he made at paragraph 52 in which he recounted the Claimant’s own case that he had been involved in “a lot of naughty things” including dealing in stolen property and the theft of jewellery and cars, but not convicted. This is simply inaccurate.[63]His view that the Claimant suffered from PTSD was less clearly expressed in his first report than it was in the first report of Dr. Roychowdhury. To him, F said (paragraph 4.26) that he did not have intrusive memories or nightmares relating to the discovering of the body of his partner Tracy. Nor did he have it in respect of his time in prison. This denial sits uneasily with his own GP’s letter to a Consultant of 12th January 1996 (Doctor Anne Lawson), recording his return from having lived in the United States for some years, in which she said:
“he presented as being depressed and told me how he was trying to come to terms with the fact that he had been wrongly imprisoned several years ago.”
F’s mother wrote to Doctor Lawson on 7th February talking of his “desperate need to find peace of mind and a reconciliation with his experiences. His huge misery and restlessness affect us all.” She talked about his fighting for compensation from the Home Office, including funds for treatment. His own mother was thus ascribing his problems and difficulties to the horror of the death of Tracy. These records show that he had persistent nightmares about discovering his partner, contrary to what is suggested by what he told Dr Roychowdhury, though entirely consistent with that which might be expected from such an horrific chain of events.[64]F indeed accepted in evidence that he had had nightmares about the murder since it had happened: neither Doctor was told this. Further, as Doctor Roychowdhury himself noted there was no material available to the Doctors from a third party informant such as the Claimant’s mother; no access to psychotherapy records held by Simon Halford who treated the first Claimant between 2006 and 2010; no access to the first Claimant’s school records, or records from the Trauma Aftercare Trust; no access to an assessment letter by Anne Mackie (who is referred to in the medical records); no access to probation records; nor any access to medical records from the first Claimant’s time spent in the USA.[65]Given these insufficiencies, and the failure to give a full account of matters which were material, I simply cannot accept the conclusion of the psychiatrists that a post traumatic stress disorder was caused by the abuse and has run a chronic course since. In particular, it is counter-intuitive to think that a person who had discovered Tracy in the circumstances he did, who was framed for a murder he did not commit, who then spent over two years in prison – which he did not find comfortable – as a consequence of which he lost the custody of his young son, and was left without house, job or personal life, and who then went to the United States to return some 4 or 5 years later complaining to his family about and seeking medical treatment for what he told them was the after effects of that incident, in respect of which he admits in court that he had flashbacks and intrusive thoughts, was actually suffering from a chronic PTSD with a very different cause. It may have been the case, that having been abused, he was suffering on-going symptoms of mental illness arising out of it, but there is no evidence of it in the papers. Given that the Doctors are agreed that the Claimant had maladaptive personality traits, and problems which pre-dated any possible abuse, and that in late adolescence and early adult life a diagnosis of harmful poly-substance abuse was to be made, and given also the additional experiences of the burning house and the car accident, it would be exceptionally difficult if at all possible to disentangle any contribution made by the sex abuse, if it occurred and to the extent that it did, from these events.[66]Both doctors were, in my view, significantly disadvantaged by attempting to diagnose the cause of current symptoms so long after the several different events which gave rise to them. Dr Roychowdhury himself drew attention to how much easier it would have been to have reached a conclusion nearer the time of the potentially causative events.[67]Both doctors, however, felt able to say nonetheless that the extent to which the abuse was a negative influence on the academic achievement of the Claimant was “difficult to quantify”. Dr Roychowdhury believed that it was unlikely that F would have done substantially better at school even if he had not been abused; Professor Maden that the other negative influences on his education existed but the abuse was so severe and affected his childhood so much that it “must have damaged his education significantly”. They both, however, felt able to agree (see paragraph 9 of their joint statement):
“The abuse has probably not significantly damaged his career beyond the effects… on his relationship with authority figures.”
[68]In the light of those observations, the unreliability of the schedule of special damage, and F’s emphasis to me that he was always in work, coupled with my view of him as an intelligent, resourceful man not without personal charm who would be likely to make the most of the opportunities he had for remunerative work, I do not think that on balance there is sufficient evidence to support any loss of income arising out of the abuse; that so far as general damages are concerned, I cannot accept the diagnosis made, as late as it was, by doctors who were not fully informed nor had all relevant material available to them that there was a PTSD arising out of the abuse.[69]If abuse were established, however, I would accept on balance of probabilities that it had caused a worsening of the mixed disorder of conduct and emotions he was suffering from before the abuse began, and contributed to a less settled life than would otherwise have been the case, giving the Claimant greater difficulty than he otherwise would have had in sustaining an intimate relationship, and causing him distress and upset over the years.[70]In S’s case too, I have significant doubts as to the reliability and accuracy of his account. Like his brother he was prepared to give his name to a fanciful schedule of loss. There was no factual basis for figures which purported spuriously to descend to pounds and pence.[71]He, too, had a criminal record. That does not have the consequence that he must be disbelieved, though I must bear in mind that his conduct has been found in the past on occasion to be deceptive. His recollection is very general: and, like his brother, I do not regard him as a reliable historian as to dates. In the course of his evidence when challenged over a number of points he first denied, then accepted them: an inconsistent approach which had it happened only once would have not been worthy of comment. Sadly, it happened more often. Of curiosity was the difference of factual recollection between him and his brother upon matters which ought not to have been recalled differently. Thus to Professor Maden, he recognised that his sister Zoe had psychological problems. So, too, did F. However, in his case, he attributed it to her being the victim of a sexual assault, whereas F ascribed it to the aftermath of a head injury. Perhaps more worryingly in the context of the current claim, S is recorded as claiming to Dr Hicklin, Senior House Officer to Dr Sherrington (a Consultant Psychiatrist), in July 2010 that “he and his two siblings were sexually abused by a Priest as children” (emphasis added). If it was actually the case that this is what happened to Zoe, it is particularly surprising that there was no further evidence of it, and that F attributed her problems to another cause. Of concern is whether the profession of the abuser was identified at the time to bolster S’s own claims to Dr Sherrington rather than accurately to record events.[72]After leaving school, S went into the army. His case is that he was dishonourably discharged. That does not accord with the documents, which record his conduct as exemplary. He did not have regular employment, as did F. Nonetheless, from some unexplained source he kept hidden (he could not or would not answer the question) he did not explain how he obtained the money to sustain his habit of taking Ecstasy, Magic Mushrooms and Amphetamine.[73]His account of attending Salford Cathedral, and then consulting the police, does not coincide with the contemporaneous documents. Nor did he make a contemporaneous record of his discussions with the Monsignor. He describes taking a route to D Division Police Station. His description does not accord with local geography: D Division is in Longsight, yet on his description he was nowhere near there. He described it as being near Salford Cathedral. He accepted, however, that he could be mistaken: but if so, he has a picture of events in his mind in which he believes but which does not accord with actuality.[74]It is clear from the documents produced before me that the Catholic Church reported the allegation to the police. The police declined to take it further in the absence of further information from the Complainant. The police had no record of his having complained to Division D, or for that matter to any other police station. As I have already recalled, S did not take advantage of the opportunity of discussing the matter with the police who were sent to see him in Brighton, following (I hold) the referral of the complaint by the Catholic Church to them. The reasons for not wishing to engage may have been understandable, but the fact is that his view that the Church did nothing to report his complaint is unsupported, yet confidently believed, as is his recollection that he himself had made a complaint to the police at the time.[75]Dr Roychowdhury recorded at paragraph 3.14 that psychiatric records from 1991 refer to S having a “long history of violence and physical aggression towards others. It appears to have happened since Junior School”. Yet he gave no such history to the doctor when interviewed for the purposes of this trial. Dr Roychowdhury’s conclusion was that S showed persistently aggressive dissocial or violent behaviour, had suffered from a PTSD which was probably severe up and until his early 20s, from cannabis dependence syndrome, and a personality disorder of the emotionally unstable type. He commented that even without the impact of the sexual abuse, if it occurred, he appeared when a young adolescent to be on a trajectory towards having personality problems in adulthood. He was driven towards the use of substances to “fit in” with his peers, and this was a problem which pre-dated the alleged abuse (see paragraph 4.34). He noted that there were elements of his account which were exaggerated – he was recorded on one occasion of saying that his IQ was 162, which the doctor simply could not accept, and implying that he had remained in one position for 36 hours, which he thought improbable. Overall, Dr Roychowdhury commented that the task of an expert, particularly in applying retrospective diagnoses, may be made more difficult by the passage of time. For example, he observed:
“had I seen the Second Claimant in his late adolescence/early 20s then the diagnosis of PTSD (for example) would have been easier to make (or be rejected) and the symptoms could have been better explored. On the other hand, diagnoses are often supported by their respective time course, and the passage of time can offer a better overview of certain conditions e.g. in the Second Claimant’s case, it is my opinion that PTSD largely improved in the early 20s onwards while his personality disorder persisted beyond this time period. It would have been harder to distinguish whether or not there were two conditions had I seen him in his early 20s (and indeed he was seen by a Doctor Stevens in 1996 post disclosure).”
[76]As to the damages which would be awarded, assuming abuse to have occurred, the Doctors were not at one as to the extent of the contribution that the abuse made to the development of the personality disorder with dissocial and emotionally unstable traits which they identified, and the effect that might have had on his future career, absent the abuse. Doctor Roychowdhury thought the disorder was moderate or severe; Professor Maden assumed that it was non-existent or mild. The documents are ambiguous. The experts said at paragraph 8, joint report:
“We agreed that the abuse and in particular the development of PTSD would have had an impact on his academic achievement but there is no way of quantifying this in the absence of relevant records. We agree that other factors such as intense bullying by peers, and developing personality disorder (affecting motivation and attitude) affected his education. Doctor Roychowdhury believes it unlikely that he would have done substantially better at school in the absence of the abuse. Professor Maden believes that it is likely that he would have done better had he not have been abused but he finds it impossible to quantify the affect.”
[77]In the light of this evidence, coupled with my view as to the unreliability of the schedule of damage as advanced, I would have found myself unable to award any financial losses directly arising from the abuse, if it occurred. There was no evidence sufficient to discharge the burden, resting on S, to show that he had probably suffered a real loss of income. However, as in the case of F, I would have thought some award appropriate in respect of general damages for pain, suffering, and loss of amenity. Because of the extreme difficulty of identifying the extent to which the abuse had interacted with other factors to cause psychological difficulty, the sum that could be established would be relatively modest at the highest.

Limitation

[78]For the reasons I have already given, I accept first that I am in no position to say that the abuse did not occur. It might well have done. Many of the features alleged are familiar to many cases which come before the courts. However, judging matters both by the evidence which was available and was called before me, some of the weaknesses, improbabilities and uncertainties of which I have set out above, as well as evidence which was either available to be called but has not been, or the absence of which has not been properly explained (such as that of the Claimant’s mother, or Father M’s sisters, or housekeeper; and the absence in both cases of full documentation relating to past history) I do not think the evidence would have been of sufficient reliability and accuracy to enable me to make positive findings that it had done so in either the case of F or that of S. I accept Mr.Fewtrell’s submission that the evidence was insufficient to discharge the burden of proof to the necessary standard.[79]In case I am wrong in that conclusion, I turn to the question of the exercise of discretion under Section 33 of the Limitation Act 1980.[80]I must have regard to all the circumstances of the case. Amongst those, I take fully into account the factors I have already mentioned.[81]The delay is considerable: in each case, the limitation period expired 21 years after the date of the birth of the respective Claimants: there was thus some 20 years further delay in one case and 22 in the other in bringing the claim. In the case of S, it is understandable that he did not make any complaint until 1995. However, he then did. He did not feel compelled to keep what had happened secret thereafter either by fear, or by particular reluctance to talk about it. In the case of F, there is greater reason to think that he might have wished to hide what had occurred. However, by 2006 that no longer applied: yet it took at least 4 -5 further years before he consulted a solicitor. No particular reason has been advanced why either Claimant should have delayed as long as each did. Their delay after having known of the abuse, and been able to talk freely about it, in both cases exceeded the 3 year primary limitation period applicable to their claims, yet no clear explanation was advanced for this. A passage of time beyond the primary limit which begins after a long delay which might be forgiven is not rendered more easily excusable because of the water already under the bridge: to the contrary, it makes taking quick action all the more incumbent on the would-be claimant.[82]I turn to whether, having regard to the delay, the evidence adduced or likely to be adduced is likely to be less cogent than if the action had been brought within the time allowed by Section 11. It is clear that the important evidence as to quantum given by the experts would have been more cogent had they had the opportunity of considering the brothers’ cases closer to the time of the alleged abuse. The sequencing difficulties, and difficulties with recollection of dates, which each brother has affects cogency. The claim for special damage was presented by way of reconstruction, as I have found, on a fanciful basis, but in any event, it is clear that the prospect of establishing clearly what the loss actually might have been, if any, has been significantly affected by the delay. The delay has caused the evidence of Father M no longer to be available.[83]As to the conduct of the Defendant,(a) there is no evidence that it either knew or had any reason to expect that Father M had abused any boy, let alone the Claimants;(b) it had no means of knowing until S reported the matter to Monsignor Quinlan in 1995;(c) it does not seem that Father M was specifically identified during the conversation, though he might have been: but the Church took appropriate action by passing the matter onto the police and is to be excused from taking further action when the police wrote back in effect discounting the allegations as worthy of further investigation without more detail from S.[84]The effect of any disability of the Claimants (this refers to legal disability – in this case minority) expired in 1990 and 1992 respectively: I have already factored this in to my analysis.[85]The extent to which the Plaintiff acted promptly and reasonably once he knew whether the act or omission might be capable at that time of giving rise to an action of damages suffers from the problem that neither Claimant sought any advice from solicitors during the 1990s, when they might well have been told that there was no reasonable prospect of a claim. If they had done, then they would have acted promptly and reasonably, albeit that the information that they would probably have been given was later to be proved wrong following A v Hoare. I simply do not know, however, why it was that they delayed for so long after both were prepared openly to acknowledge what had happened, felt aggrieved by it, and could find it to their economic advantage to pursue a claim but did not do so.[86]I have dealt above sufficiently with the steps taken to obtain medical, legal and other expert advice.[87]In summary, in the particular circumstances of this case, and the particular and unusual circumstances of the individual Claimants, I am bound to hold that although it is entirely possible that one or both of the Claimants may have been the subject of serious abuse and breach of trust by a Priest for whose deeds the Defendant is vicariously liable I do not think that a fair trial of these allegations is any longer possible. I have decided therefore that even if I had thought the evidence sufficient to satisfy the burden and standard of proof, such are the difficulties caused by delay in taking action that I should not exercise my discretion to permit the claim to continue. Further, if the claim had been advanced, there are the particular difficulties as to making any award for the financial losses claimed to which I have already pointed, as well as great difficulty assessing general damages for pain, suffering and loss of amenity. This would involve extracting the uncertain contribution made by any such abuse as might have occurred from other factors operating independently upon the mental state of the Claimants. Such are the problems of assessment, and of disentangling a tortious cause from one that involves no breach of duty, that a fair trial of those issues would in my view no longer be possible. Nearer the time it may have been.[88]Despite the attractive way in which the cases for each of the Claimants was presented by Ms Gumbel QC it follows that the defence succeeds, and the claims must be and are dismissed.

Cited in 1 later judgment