The consequences of delaying historic abuse claims

46414989 - legal law concept imageGenerally speaking, the ‘limitation period’ for claims relating to personal injury is 3 years. If the claimant does not issue court proceedings within this primary limitation period, then, subject to the discretion of the court to dis-apply the limitation period, the opportunity to claim compensation is lost forever.

In order to for the court to consider whether to dis-apply the limitation period, a s.33 application must be made by the claimants. However, when making this application, it is at the unfettered discretion of the Judge whether to exercise his powers and to allow the claim to proceed further.

In the case of F and S v TH [2016] EWHC 1605 (QB), the claimants had made a claim for abuse that took place over 30 years ago, so the primary limitation period had well and truly expired. Therefore, the honourable Judge Mr Justice Langstaff considered an application made under Section 33 of the Limitation Act 1980.

Case Facts

The claimants alleged that they had been sexually abused by a (now deceased) Roman Catholic priest, Father M.

The claimants (F and S) were brothers and made a claim for damages against the defendant organisation (TH) to be held vicariously liable for the alleged abuse between:

  • 1979 and 1983 for the first claimant (F)
  • 1983 to 1986 for the second claimant (S)

Analysis

Although the judge made it very clear that he was in no position to decide whether the claims were true or false, there were many other factors of concern.

Despite taking into consideration the sensitive nature of the claims, and accepting that the claimants may have found it difficult speaking about the abuse, it was not understood why there had been a delay from the point of when first spoken about the abuse to making a claim. Even this fell outside the limitation period. No justifications were given.

This delay had therefore caused difficulties in obtaining enough evidence. Already, there was not enough evidence to support the claim, especially as the defendant had died years before; however, the court’s view was that the available evidence was unsatisfactory and less cogent due to the passage of time.

Another concern was the schedule of damages submitted by Counsel for both defendants. Judge Justice Langstaff dealt with both schedules submitted by Counsel, Ms Gumbel QC separately, and analysed the reliability and realistic nature of those submissions.

Judge’s comments

The judge found the first claimant’s schedule of special damages highly inflated. Initially, the claimant made a claim for a total of £353,704.60 in 2012. His new revision was put forward in 2015 amounting to £437,777.90. This included a past loss of earnings just short of £250,000. The judge noticed the accuracy of the amount, which even descended to pence, however no documentation was provided to support any of the figures.

The thrust of F’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.

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.

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.

In relation to his brother S’s schedule of damages, the judge found that again there was no evidence to back up his claim. It was merely a ‘fanciful’ schedule of loss with figures that had no factual basis. Evidence presented on behalf of S stated that he had severe PTSD and aggressive disorder due to the alleged abuse he suffered. This therefore affected his grades at school and his ability in the future. However, in the joint expert report, Doctor Roychowdhury had the view that despite the abuse, it was unlikely that S would have done substantially better at school. Due to the lack of accessibility of the relevant records, it is difficult to quantify the amount of effect the abuse would have had on his performance at school.

With the support of expert evidence suggesting the claimant PTSD was either ‘non-existent’ or ‘mild’, the Judge was able to conclude that he would not be able to award any financial damages directly arising from the alleged abuse.

There was no evidence sufficient to discharge the burden, resting on S, to show that he had probably suffered a real loss of income.

Although the Judge stated that it was possible for the abuse to have occurred, the underlying factors of the case proved that a fair trial of the allegations were no longer possible.

The delay in bringing the claim to court, as well as the submissions of a vastly inflated and unrealistic schedule of loss, casted doubt on the reliability of both the claimants’ evidence. Therefore the court rejected their s.33 application.

Moral of the story

It is always difficult to succeed in a s.33 application and therefore practitioners should be conscious that they must prepare their pleading very carefully to ensure they have the best chance of convincing the court the historic claim can proceed. They also need to be careful when drafting a Schedule of Damages, as there is always the danger of it becoming thoroughly scrutinised in court. The temptation of ‘drafting high’ could deem to look like a work of ‘fiction’ resulting in the entire action being fundamentally dishonest.

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