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Section 33 of the Limitation Act 1980: Credibility and Prejudice - Andrew Roy & Nina Ross,12 King's Bench Walk

03/07/20. Under s.33 Limitation Act 1980, the court may disapply the limitation period in a personal injury claim if it is equitable to do so having regard to the prejudice to the claimant if precluded from bringing his claim and the prejudice to the defendant in being required to meet an out of time claim. In FZO v Haringey London Borough Council [2020] EWCA Civ 180 the Court of Appeal provided important guidance as to the assessment of evidential prejudice when limitation is determined alongside the substantive issues at the final trial.

Background

The claimant sought damages for personal injuries arising out of sexual assaults committed upon him by the first defendant schoolteacher between 1980 and 1988. The second defendant was the local authority responsible for the school and the first defendant’s employer.

It was the claimant’s case that, shortly after he had arrived at the school, the claimant had been raped by another man. The claimant confided in the first defendant about the rape. The first defendant told him that the incident meant that he was gay and that, if it became known, he would be thrown out of his family home. By this means, the first defendant groomed and manipulated the claimant into sexual activity with him, which included anal rape almost from the start.

In 1982, when he was about 16 years old, the claimant left the school, albeit he returned again for a short period in 1983/1984. He alleged that the first defendant continued to abuse him until 1988 when he was 21 years old. He then had ongoing contact with the teacher until 2011 when, after years of experiencing anxiety and psychological problems, he suffered a breakdown. In 2014, the first defendant pleaded guilty to counts of indecent assault and buggery when the claimant was aged between 13 and 15 years. He also admitted to raping the claimant when he was under 16. The claimant began the instant proceedings in 2016, which was between 25 and 30 years after the expiry of the applicable limitation period for each assault.

The key issues were:

1. Should the claim be allowed to proceed 25-30 years out of time pursuant to s.33?

2. Did the claimant consent to sexual activity with the first defendant after he left the school?

3. Was the school vicariously liable for the first defendant’s conduct after the claimant left the school?

4. What if any injury did the sexual abuse cause the claimant?

5. Whether the claimant was precluded from bringing a claim for the consequences of his breakdown in 2011 by the doctrine of ex turpi causa since his breakdown was related to his use of illegal drugs.

Decision at first instance

Cutts J held ([2018] EWHC 3584 (QB)) that:

1. The claim should be allowed the claim to proceed out of time:

a. The length of the delay was substantial. However, the claimant had good reasons for the delay. The claimant did not recognise, until his breakdown in 2011, that what happened to him at the first defendant’s hands was abuse. He failed to see it as abuse because of the first defendant’s grooming behaviour and emotional manipulation of him [179–186].

b. The delay had had little impact on the cogency of the evidence. Both the claimant and the first defendant had been able to give detailed evidence about what happened. Their memory had not been affected to such an extent that this matter could not be safely tried. It was difficult to see what other evidence that might have been available to the defendants which would have assisted them with disputing the abuse. Liability was largely accepted for the time that the claimant was at the school. The first defendant argued that he had been prejudiced by the absence of a particular witness but no attempt had been made to locate that witness. The issue of causation was now confined to whether the claimant could establish that the abuse was the reason for the mental health difficulties from which he suffered and his subsequent inability to work. Notwithstanding the delay, both psychiatrists had been able to reach confident conclusions. There would be some difficulty in determining the reason for the claimant’s mental health difficulties following a breakdown which took place some 24–31 years after the abuse occurred. Having said that, there would have been difficulty, perhaps even greater difficulty, in predicting when the claimant was 21 or 22 what the effects of the abuse would be on his future life. The burden of proving causation was on the claimant himself. The exercise of determining it would require a detailed scrutiny of the claimant’s past life and history, together with an examination of the available evidence and an assessment of the claimant’s reliability as a witness. The courts were well used to carrying out such assessments. [187–197].

c. Section 33(3)(c) required the court to consider the conduct of the defendants after the cause of action arose. The type of conduct relevant for these purposes would be any obstructive behaviour on the part of either defendant which might have prejudiced the claimant. In this case, the deputy head of the school had seen the claimant at the first defendant’s home address. This should have aroused suspicion and it presented the school with a contemporaneous opportunity to make further enquiry which it did not take. [198–199].

d. As to s 33(3)(d) and (e), there was a delay in the claimant instigating a civil claim after he reported the abuse to the police. However, it was reasonable for him to have waited until the conclusion of the criminal proceedings given that he was psychiatrically unwell at the time. His solicitors were entirely right not to have taken a witness statement from him and to have waited to receive his statement from the police. Had he instituted the civil claim before the criminal proceedings were concluded, it would have been stayed in any event. [203].

e. As to the merits of the claim, the defendants submitted inter alia that, by reason of the inconsistencies in the claimant’s account, the implausibility of a significant part of his evidence and his diagnosis of emotionally unstable personality disorder (‘EUPD’), the court should conclude that he was an incredible and unreliable witness. Although the happening of the abuse was not in issue, causation was. The diagnosis and opinions of psychiatrists was only as good as the information they received. As the information they received came almost entirely from the claimant this meant that causation could not be properly established and the claimant could not discharge the burden of proof. In those circumstances, the claim must fail and it would be unjust to disapply the limitation period. The court rejected these submissions. Whilst there was some inconsistency in the claimant’s evidence and he exaggerated or over-dramatised aspects of his evidence, this did not render his evidence so unreliable or incapable of belief that his claim must fail. These were matters to which, if the limitation period were disapplied, the court would have careful regard [161–178].

2. The claimant had submitted to the sexual activity after the age of 16, rather than actively consented to it.

3. The second defendant was vicariously liable for the first defendant’s conduct after the claimant left the school.

4. The evidence of the claimant’s expert psychiatrist was to be preferred; the claimant suffered from complex post-traumatic stress disorder (CPTSD) under ICD-11 caused directly by the first defendant’s abuse.

5. Public policy did not require that the claimant be deprived of his lost earnings claim by reason of a minor and transient contribution made by modest offending.

At a subsequent quantum hearing, the claimant was awarded damages of c. £1.1 million [2019] EWHC 1286 (QB); [2019] Costs L.R. 437.

The second defendant appealed in relation to issues 1 to 4.

Judgment in the Court of Appeal

The Court of Appeal dismissed the appeal. McCombe LJ gave the leading judgment with which Simon and Nicola Davies LJJ agreed.

As regards limitation, the second defendant had advanced two grounds of appeal. The first was that the judge had impermissibly factored into her decision on s.33 adverse findings regarding the first defendant’s credibility. The Court of Appeal held that this argument was “simply wrong” [105]. The judge considered fully and properly the factors arising under s.33. It was “wholly unrealistic” [101] to submit that the judge could not properly consider the respective credibility of both the claimant and first defendant when dealing with the limitation issue:

102. If a defendant chooses, in a case of this type, to argue that a limitation period should not be disapplied because of the total lack of credibility of the claimant he/she/it must take the risk that a judge will have to assess that credibility, even for limitation purposes, in the light of the credibility (or lack of it) of the rival witness or witnesses.

The next ground of appeal relied upon two statements from earlier appellate cases. The first statement was that of Lewison LJ in RE v GE [2015] EWCA Civ 287 in which he said that “I would regard the possibility of a fair trial as being as necessary but not a sufficient condition for the disapplication of the limitation period”. The second statement was that of Lord Hope in AS v Poor Sisters of Nazareth [2008] UKHL 32; [2008] UKHL 32 in which he held that: “proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue of [limitation under s.33] in his favour”. The second defendant argued that the learned judge failed, contrary to evidence, to conclude that the second defendant was exposed to the real possibility of significant prejudice.

The court dismissed this ground of appeal. The two statements relied upon by the second defendant had to be seen in the context in which they were made. For example, in RE v GE, Lewison LJ was merely stressing that the ability to hold a fair trial is not "the be all and end all". There were other factors to be considered. In that case, the court was dealing with a matter in which there had been long delay on the part of the claimant which had been unsatisfactorily explained. That delay was a significant factor in the judge's decision not to disapply the limitation period and the Court of Appeal upheld that decision.

In the instant case, the judge was right to take into account that the second defendant had done little or nothing to make up the evidential deficiencies of which it complained. It could not give concrete examples of missing witnesses or point to any witnesses who were sought but not found [114-115]. Further, the judge was not wrong to prefer the claimant’s psychiatric expert whose view was that the difficulties caused by the passing of time and missing records were minor. The judge had heard the expert witnesses’ oral evidence and it was not right to "second guess" the judge's decision on whose opinion was to be preferred, absent a clear indication that there had been an error of principle or some logical flaw in the assessment process [116-118].

The second defendant’s arguments on consent, vicarious liability and causation were also dismissed.


Comment

This is an important judgment in relation evidential prejudice under s.33(3)(b). Defendants in stale claims frequently submit that they have suffered prejudice due to the degradation or loss of critical evidence. This case is another example of that submission being undermined by the defendant’s failure to show that proper investigations to seek to obtain evidence were undertaken and that any lost evidence might have made a difference to the issues in the case (see also Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992: [2018] 4 WLR 32).

The judgment also reinforces the need to balance the various factors listed under s.33(3). It will not be sufficient for the defendant to show that it has suffered the real possibility of significant prejudice for the s.33 to be exercised in its favour. The court must consider that factor in the context of the claimant’s reasons for the delay and all the other relevant circumstances.

A particular point which emerges from FZO is that if the evidence at trial goes heavily against a defendant it may be difficult to argue that the delay has caused any significant prejudice. Unless it can be shown than some important piece of evidence has been lost, once a judge has come to a clear view as to truth of the matter, it will be difficult to persuade them that the position would have been any different had the claim been brought earlier.

In FZO the defendants’ full frontal attack on the claimant’s credibility backfired when in came to limitation. Once the judge had comprehensively preferred the claimant’s evidence to that of the first defendant, the defendants were always struggling to show prejudice in circumstances where they had not demonstrated that, had the claim been brought earlier, there would have been any other material which could have made difference to this assessment.

We suspect that the defendants would have had better prospects on limitation had it been determined as preliminary issue. It might have been easier to have established a risk of significant prejudice at that stage. Their problem was that actual determination of the evidence at trial revealed that risk to be merely theoretical.

In fairness, the defendants in FZO probably had no choice in this respect. As the Court of Appeal recorded at [51] it was “in accordance with usual practice in cases involving alleged sex abuse, [that] the issues of the disapplication of the limitation period, liability and causation were tried together, in order to avoid the claimant having to give evidence twice, if the action were to be allowed to proceed outside the limitation period”. In our experience, applications for limitation to be tried as a preliminary issue in abuse claims are invariably refused.

However, it remains quite common outside the context of abuse claims for preliminary issue trials on limitation to be ordered. Those advising both claimants and defendants need to give careful consideration as to whether tactically it is likely to be more beneficial to their client for limitation to be determined separately or alongside the substantive issues.

Andrew Roy and Nina Ross are barristers specialising in personal injury at 12 King’s Bench Walk. They are the co-authors of the recently published fourth edition of Personal Injury Limitation Law (Bloomsbury Professional).

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