AB & Ors v Leicestershire County Council

The three claimants in this case each allege that in the 1980’s, when they were all children, they were the victims of physical and sexual abuse while they were living at The Beeches Children’s Home, Leicester Forest East (“the Beeches”) which was operated by the defendant. The claim of a fourth claimant has been stayed as a result of concerns over her continuing capacity to litigate.

There are two alleged perpetrators: Frank Beck, who was the officer in charge of the home, and Greville Janner MP (as he then was) who is alleged to have been a frequent visitor. It is agreed, for the purposes of these claims, that the defendant is vicariously liable for any abuse proved to have been carried out by Beck but not for any abuse proved to have been carried out by Janner. The distinction is, however, academic because the defendant concedes that, if any given claimant’s allegations are proven, then Beck must have facilitated Janner’s access to that claimant for the purposes of carrying out abuse upon him and it is therefore liable for those acts of abuse in any event.

The defendant nevertheless denies that the claimants were, in fact, victims of the alleged abuse and also contends that these claims are now statute barred. It was therefore ordered that preliminary issues should be tried on limitation and liability. These are the issues which arise for my determination in this judgment which follows upon a full contested hearing in which witnesses were called and evidence adduced by both sides. In the event that I were to find in favour of one or more of the claimants on both of these issues, the quantum of damages would fall to be agreed or assessed at a later date.

It is convenient for me to begin with a short description of the alleged perpetrators.

Frank Beck, a former Royal Marine, had worked in children’s homes in Leicestershire since 1973. He was a predatory paedophile. It is not disputed that, for many years, he physically and sexually abused some of the children for whose welfare he was responsible.

In May 1990, he was arrested and charged with multiple counts of sexual and physical assaults against children who had been entrusted to his care. On 29 November 1991, he was convicted, after trial, of seventeen offences including buggery and rape. He was sentenced to life imprisonment and died in prison in May 1994.

Greville Janner was born in Cardiff in 1928. He was called to the Bar in 1954 and was elected MP for the constituency of Leicester North West in 1970 and for Leicester West from 1974 until 1997.

In September 1997, he was ennobled as Baron Janner of Braunstone. I mean no posthumous disrespect in referring to him henceforth in this judgment, for the sake of convenience and consistency, as “Janner”.

Allegations of sexual abuse against Janner began slowly to accumulate over a very long period of time but it was not until 2015, when he was already a very sick man, that he faced trial on 22 counts of indecent assault and buggery against young complainants between 1963 and 1988. These allegations were destined never to come before a jury. He died in December 2015, aged 87, before his trial had begun.

There had been earlier police investigations into allegations of sexual abuse made against Janner in the 1990’s and 2000’s but matters were taken no further on these occasions. Two official reports were strongly critical of these earlier investigations. They were:

Sir Richard Henriques also carried out a detailed review of the Metropolitan Police investigations into persons of prominence following the notorious and false complaints of sexual abuse made by Carl Beech. On 22 July 2019, Beech was convicted of perjury and later sentenced to 18 years in prison. One of those whom Beech falsely accused of sexual abuse was Janner.

The parties are agreed that I am entitled to have regard to the matters of primary fact referred to in these reports but that the opinions of the authors are not admissible (see Hollington v F Hewthorn & Co Ltd [1943] K.B. 587). The reports are publicly accessible online and it is therefore necessary for me only to summarise the history which they record.

The suspected involvement of Janner in the sexual abuse of children first arose in a formal context from an account given by a complainant referred to in the Henriques Janner report as C1. He had given a statement to the police investigation into Beck in 1990 but did not, at that stage, mention Janner. However, when Beck’s house was searched, letters were found there from Janner to C1 signed “love Greville”. C1 than gave a further statement on 29 January 1991 alleging sexual misconduct by Janner who he said he had first met at his school.

It was part of Beck’s unsuccessful defence in the criminal proceedings against him that he was doing no more than attempting to counsel victims of abuse which had, in fact, been perpetrated not by him but by Janner and others.

During the investigation of C1’s complaints, Janner was interviewed by the police on 13 March 1991 in the presence of his solicitor. On advice, he gave no comment responses to all of the questions asked of him.

The matter against Janner was, at that stage, pursued no further.

After Beck’s conviction in November 1991, the defendant set up an inquiry under the chairmanship of Andrew Kirkwood QC who, in 1992, produced a long and detailed report into aspects of the management of children's homes in Leicestershire between 1973 and 1986. The report makes no express reference to Janner but Janner did give evidence to the inquiry during the course of which he denied that he even knew Beck.

In February 2000, Leicestershire police embarked upon Operation Magnolia. Its purpose was to investigate whether there was evidence of physical or sexual abuse of children at the Holt and Ratcliffe Road Children’s Homes between 1980 and 1990. Beck had been the officer in charge of Ratcliffe Road between 1975 and 1978.

During the course of the Operation, further allegations of sexual abuse against Janner were made but the investigation into those allegations was flawed and appears, on the face of it, to have been fatally undermined by a deliberate decision by Leicestershire Police to withhold key witness statements from the Crown Prosecution Service (“CPS”).

In March 2000, a former care-home resident (referred to as C2) was interviewed by police about his allegations against the staff. At the end of that interview, he claimed that he had been sexually abused by Janner and arrangements were made for him to be further interviewed about this allegation. The account he gave was recorded in a formal witness statement. However, this statement was, inexplicably, not entered into the Home Office Large Major Enquiry System (“HOLMES”) until 8 November 2001. Beyond carrying out some general enquiries, Leicestershire Police failed thereafter properly to investigate this complaint against Janner.

In May 2001, another former resident was interviewed by officers from Operation Magnolia. He too made an allegation that Janner had sexually abused him. His account was also set out in a formal statement. Despite this second allegation, further investigations into the accusations against Janner simply ground to a halt.

On 28 November 2001, a meeting took place between the Leicestershire CPS reviewing lawyer and police officers attached to Operation Magnolia. The case against staff at the children’s homes was discussed but not the allegations against Janner. The statements of the two witnesses were simply not passed over to the CPS and the matter went no further.

The inaptly named Operation Dauntless was established by Leicestershire Police in May 2006, following an allegation by another former resident, C3, who claimed that he had been sexually abused by a number of men, including Janner. During the course of those further enquiries, the statements of the two Operation Magnolia witnesses were discovered in a locked drawer at Market Harborough Police Station. The Operation Dauntless officers realised that these statements had not been sent to the CPS during Operation Magnolia and that, in consequence, no follow-up action had taken place.

The officer in charge of the Operation decided that Janner was not to be arrested or interviewed unless and until supportive advice from the CPS had been received. In April 2007, a file of evidence was forwarded to the Leicestershire CPS. The CPS did not respond and advise the police until 19 December 2007 and, even then, concluded that there was no realistic prospect of securing a conviction against Janner and that any further enquiries were unlikely to strengthen the case against him. The police did not seek to challenge the CPS decision.

In late 2012, Leicestershire Police received representations suggesting that Janner should have been prosecuted for child sexual abuse offences. As a result, Operation Enamel was set up to establish whether there was any evidence which had not been previously properly considered in the course of the earlier police investigations, including Operations Magnolia and Dauntless, and to decide whether to review the previous decisions.

Whilst some of the allegations under consideration had previously been investigated, other complainants contacted the police for the first time during the course of Operation Enamel.

In stark contrast to its predecessors, Operation Enamel was a very significant police investigation which, at its height, involved about 30 officers. Nearly 800 witness statements were taken. More than 1,000 exhibits were examined. Over 8,000 documents were registered on HOLMES and over 3,600 lines of enquiry were raised.

The witnesses whose earlier complaints had been passed over were contacted and, as new complainants came forward, their allegations were also investigated.

Janner was not arrested as part of Operation Enamel but his home address and parliamentary office were searched. The police were planning to invite Janner for an interview but a police surgeon advised that he was, by then, suffering from Alzheimer’s disease the severity of which meant that his cognitive function was so poor that the value of any answers he might give would be questionable.

Throughout 2014 and 2015, officers from Operation Enamel sought advice from the CPS and independent senior counsel on whether any further enquiries should be pursued or additional evidence obtained and, ultimately, whether any charges should be brought.

In total, the allegations of 40 complainants had by then accumulated all of them said that they had been abused by Janner. By 2015, their complaints were at various stages of investigation but there were twelve complainants in relation to whose allegations the investigations were complete. The CPS reviewing lawyer advised that, as a result of the new evidence, charges should now be brought.

Despite this, on 16 April 2015, following a review by the Director of Public Prosecutions, the CPS announced that, although the evidential test was met, the medical evidence in respect of Janner’s health was such that it was not in the public interest to prosecute him. It issued a press statement to this effect.

This decision was, however, subsequently reviewed as part of the Victims’ Right to Review Scheme and, on 29 June 2015, the Director of Public Prosecutions announced that her earlier decision no longer stood and that Janner was to face criminal proceedings after all.

In September 2015, at a preliminary hearing in the criminal proceedings, the indictment as then drafted contained 22 counts of indecent assault and buggery contrary to the Sexual Offences Act 1956. The offences were alleged to have taken place between 1963 and 1988 over which period the nine complainants had been aged between 8 and 16 years old. Some of them were former residents of Leicestershire County Council’s children’s homes, others were not.

On 7 December 2015, Openshaw J ruled that Janner was unfit to stand trial. There was, however, to be a trial of facts to establish whether Janner had committed the alleged acts of abuse but his death on 19 December 2015 brought all criminal proceedings to a close.

By this time, the prosecution had indicated that it was seeking to add twelve further counts relating to three additional complainants. These included allegations of indecent assault, buggery and attempted buggery which were said to have taken place between 1969 and 1985 when the complainants had all been aged 16 years or under.

The three claimants in the instant case first made public their formal complaints against Janner following the publicity surrounding his pending trial. They were not, however, identified as victims in any of the counts on the indictment against him.

A number of those who made allegations against Janner were former residents of children’s homes run by the defendant. In relation to one complainant, it accepted that it knew about Janner’s association with that child and, although denying that there was any indication that sexual abuse was involved, admitted that it had failed to take adequate steps in response to concerns expressed by staff about the relationship.

More generally, the defendant also accepted that during the 1970s and 1980s it received numerous complaints that children within their children’s homes were being physically and sexually abused by individuals including members of staff. It accepted that its procedures for detecting and responding to those allegations were “inadequate” and it apologised to those children in its care for the abuse they had suffered. The troubled backgrounds of the complaints of abuse had meant that they were not given the attention and respect they deserved.

AB has been granted anonymity in these proceedings.

He was resident at the Beeches between 6 December 1984 to 20 May 1985 and between 10 June to 17 December 1985. He alleges that during his time there he was repeatedly physically and sexually abused by Beck and, on two occasions, by Janner.

He said that soon after arriving at the home, while he was sharing a dormitory with other boys, he noticed that Beck was behaving inappropriately towards other children by putting them on his lap and caressing them. Within a few weeks, Beck was doing it to him too. The violent physical abuse also started at about the same time. Beck would grab him painfully by the arms and around the neck or pull him up by the legs and hit him if he answered back. Other children were victims of the same treatment.

After a while, AB was moved into a single room in the Beeches which then gave Beck the opportunity to rape him anally causing severe pain and bleeding.

On another occasion, in an incident which put AB in fear of his life, Beck came into the bathroom whilst he was taking a bath, grabbed him around the throat and put his head under the water a number of times before throwing him onto the floor and telling him to ‘get dressed’.

One time around Christmas, Beck took AB to his home in Braunstone. There he was introduced to a man who he later found out was Janner. Janner forced AB to masturbate him and then had sex with him. He was made to perform oral sex on Janner who then went on to perform oral sex on him.

In May and June 1985, AB spent some time in the Glen Parva Youth Custody Centre before returning to the Beeches. After he had returned, Beck raped him again with substantial force. Janner arrived around 20 minutes later and AB was made to perform oral sex upon Janner who then performed oral sex upon him. Janner then anally raped him.

The final incident occurred when AB was spending New Year at the Beeches. Beck saw the claimant drinking alcohol and physically assaulted him before anally raping him and forcing him to perform oral sex upon him.

AB states that he disclosed the abuse to his social worker, Rose Kay, on a number of occasions but she just told him to stop being silly. Everyone he told thought he was making it up. He told the police about the abuse when they picked him up at various stages when he went on the run whilst he was resident at the Beeches but he was not believed.

A report dated 5 March 1986 records a discussion with Elizabeth Clarke, a member of staff at the Beeches. She reported concerns about Beck’s violence towards the children at the home and referred to a report by a child that they had been ‘touched up’ by Beck. The interviewer advised her that: “a good deal of physical contact was normal in the home, and she accepted this.” AB was mentioned within the report but not as a victim of either physical or sexual assault.

AB was first interviewed by the police in October 1990 and provided a statement to them describing violence and sexual assaults by Beck on other children at the Beeches but not mentioning any such assaults on him. He now says that he was embarrassed to disclose the sexual abuse and he did not want to appear weak by complaining of physical abuse.

The claimant eventually approached the police in 2015 when he became aware that others were making complaints about Janner. He says he now feels guilty about not coming forward sooner.

In the context of these proceedings, a consultant forensic psychiatrist, Dr Roychowdhury, prepared two reports on behalf of AB dated 28 June 2019 and 28 February 2025. They were 55 and 68 pages long respectively. Professor Maden, of the same discipline, reported on behalf of the defendant. His report was 42 pages long. There is a joint report of 10 September 2025.

The psychiatrists agree that the AB’s mental health deteriorated in 2007. Some of his reported symptoms are characteristic of PTSD from that point on but it is also agreed that, even taken at face value, they did not at that stage meet all of the criteria for a PTSD diagnosis.

Both experts accept, however, that he reported symptoms consistent with a diagnosis of PTSD from 2015. Dr Roychowdhury considers that he had that condition from then onwards. Professor Maden, however, doubts the claimant’s credibility and so does not accept that diagnosis.

There are a number of confounding features. AB probably had a conduct disorder predating his stay at the Beeches. He has in the past abused alcohol, cannabis and cocaine. He has a personality disorder with mainly dissocial and impulsive traits.

Dr Roychowdhury considers that the claimant’s PTSD was caused by abuse suffered at the hands of Beck and Janner (“the index events”) and that the abuse made his personality disorder worse than it would otherwise have been.

Professor Maden concludes that “if the Court finds the claimant was abused as he says he was” it would be likely to have made all his mental health problems worse. He does not however accept that the claimant is a credible witness.

AB’s claim is in respect of the abuse he is alleged to have sustained at the hands of both Beck and Janner.

Phillips was resident at the Beeches intermittently between April 1984 and May 1986. He alleges that during this period he was sexually abused by Beck and, on one occasion, by Janner. He said that Beck would provoke him to have a tantrum as a pretext upon which to restrain him. He would rub himself against him in a sexual manner. Whilst Phillips was resident at the Beeches, Beck would sexually assault children in the attic of the building, The first time that Beck took Phillips to the attic, he forced him to watch whilst he raped a nine-year-old girl. The claimant did not intervene to help her because he was terrified of Beck who was large and physically strong.

Beck frequently penetrated Phillips anus with his finger and raped him on between 20 and 30 occasions. The claimant was made to take part in oral sex with Beck, either giving or receiving, on an almost daily basis.

Phillips was, on one occasion, taken to Beck’s home in Braunstone on the pretext of being required to do some jobs there. Janner later arrived at the house. Phillips was separated from other children and left in a room with Janner who forced him to masturbate and perform oral sex on him. Janner attempted to anally rape him but could not manage to penetrate him. He says that he vividly remembers the smell of the sofa in the room which resonates with the account given by AB.

Phillips says that he reported the physical abuse, but not the sexual abuse, to an external social worker, Stuart Hainson. He did not mention the sexual abuse because: “I was trying to look tough, but in reality I was embarrassed to admit it to him …”.

Philips also says that he reported abuse to the police, including on one occasion the abuse by Janner, when he was arrested or after he had run away from the Beeches but nothing ever came of it. He thinks that he was not believed because he was a child in care or because the police didn’t want to do anything about it. On one occasion, a police officer told him and other children to ‘stop being so stupid’ when reporting their abuse.

By the time that Phillips was approached by the police in the context of the investigation into Beck, he had a new family and felt that his life was improving. He told them about the physical abuse but could not bear to face admitting that he had been sexually abused. In this regard, his statement to the Police dated May 1990 is thus relatively brief.

In the event, Phillips brought a claim for damages for the physical abuse he alleged against Beck in the 1990’s and received compensation. He said he was unable to admit that he had been sexually abused at that point. A medical report was prepared in 1994 which detailed the type of physical abuse in respect of which the claim was brought.

By 2015, Phillips was serving a custodial sentence at HMP Ryehill when he spoke to his personnel officer about some of the abuse that he said he had suffered in care and was consequently interviewed by officers working for Operation Enamel. He was visited by investigating officers in July 2015 and he then alleged that he had been the victim of sexual abuse by Janner. The contemporaneous records suggest, however, that when visited a few weeks later for a visually recorded interview he refused to cooperate with the process and remained in his cell.

He was visited again in December 2016 and initially refused to engage with officers, before stating that he did not want to pursue the matter further. By this time he had been recently arrested for an offence of rape and says that his life at that time was chaotic and plagued by addiction.

Consultant Psychiatrists, Dr Shergill and Professor Maden, reported on behalf of Phillips and the defendant respectively. They agree that, in general terms, severe abuse would be likely to cause mental health problems or make existing mental health problems worse. Dr Shergill diagnosed Phillips with PTSD caused by the sexual abuse and considered that his remaining mental health problems were probably made worse by sexual abuse. Professor Maden was of the view that Phillips’s mental health would have been unaffected by the abuse, if it occurred, and doubts the diagnosis of PTSD.

Phillips’ claim is in respect, therefore, of sexual abuse alleged to have been perpetrated on him by both Beck and Janner.

Betteridge was resident at the Beeches between 28 August 1981 to 16 November 1981.

He later brought a claim against the defendant alleging that he was sexually and physically abused by Beck when he was there. The defendant admitted liability and settled his claim in 1996.

His present claim relates to additional sexual abuse alleged to have been perpetrated on him by Janner.

He alleges that, following a visit facilitated by Beck, Janner took the claimant out of the Beeches under the pretext of taking him to a cricket match. Instead, Janner drove Betteridge to an allotment where he parked his car and forced Betteridge to perform oral sex upon him, whilst he touched his genitals.

On another occasion Betteridge was taken to one of the portacabins situated on the Beeches site by an employee of the defendant known as ‘Cookie’. They were accompanied by Janner who took the opportunity to anally rape Betteridge in the portacabin. Betteridge does not recall whether ‘Cookie’ stayed whilst Janner raped him or had left before it happened.

Betteridge says that he reported that he had been sexually abused to members of staff at the Beeches but no action was taken. Another resident had told him in that he was not allowed to say anything about what had happened.

Betteridge was allocated a befriender by the defendant, who took him out of the home on occasions. He reported the abuse to that person but his response was that it had ‘nothing to do with him’. Another person, Betteridge cannot remember who, told him that he would not be believed because he was ‘just a spoilt brat in care’.

Betteridge also says that he told his social worker, Alan Mangham, that he had been abused by Janner and by Beck but he was very dismissive of these claims. He thinks that everyone who worked at the care home knew what was going on there but did nothing. He ran away from the home numerous times but was caught by the police and returned. On several occasions he said that he reported that he had run away because he was being abused but was not believed. In the end, he gave up trying.

He said that he first made formal disclosures about his abuse at the hands of Janner in 2015 when the complaints by others against Janner had become more widely known. He felt secure in making disclosures at that time because there was ‘safety in numbers’. He felt that he would not have been believed if he had raised those issues earlier.

His report to the police was recorded in a taped interview during the course of which he appeared to become very distressed at various times when giving his account.

Dr Shergill and Professor Maden agree that the claimant probably had a mixed disorder of conduct and emotions predating his time at the Beeches and that he had well documented and severe problems in peer relationships before the material allegations. Dr Shergill diagnosed PTSD but Professor Maden did not accept that diagnosis, based as it was on uncorroborated accounts of the claimant.

The experts agree that sexual abuse would be likely to cause mental health problems. Dr Shergill considers that the claimant suffered abuse, which caused PTSD. Professor Maden does not believe that abuse by Janner, if found to have occurred, would have caused him psychiatric harm over and above that caused by Beck in respect of which he had already been compensated.

I start with a short digression. The Crime and Policing Bill presently before Parliament contains provisions the effect of which, if brought into law, would impose stricter limits on the circumstances in which claims relating to sexual abuse on child victims could be defeated by a defence of limitation. As presently drafted, however, it does not apply to any claim which has been determined prior to the commencement of the new provisions. Accordingly, the issue before me must be decided in accordance with the law as it presently stands and no purpose would be served by my speculating on what form my analysis might otherwise have taken.

Section 11(1) of the Limitation Act 1980 (“the Act”) provides, in so far as is material:

“(1)This section applies to any action for damages for negligence, nuisance or breach of duty…where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person…

(4)

… the period applicable is three years from—

(a)

the date on which the cause of action accrued…”

It is now established that “breach of duty” includes trespass to the person (see A v Hoare [2008] 1 AC 844).

However, the time period does not run while the claimant is “under a disability”. Section 38(2) of the Act provides that “For the purposes of the Act a person shall be treated as under a disability while he is an infant.”

The three year period therefore started to run against each claimant in this case on his 18^th birthday and expired on the first working day after his 21^st birthday. The primary limitation period in respect of each of their claims has, therefore, long since expired.

The claimants, however, each ask the court to disapply the primary limitation period, which would otherwise operate so as to bar his claim, with recourse to section 33 of the Act which 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.”

Before looking more closely at the proper approach to the balancing act involved in applying the provisions of section 33 it is necessary to consider the stage at which this exercise falls to be performed.

In KR v Bryn Alyn Community (Holdings) Ltd [2003] Q.B. 1441 Auld LJ held at paragraph 74:

“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.”

In B v Nugent Care Society [2010] 1 W.L.R. 516, Lord Clarke MR, who gave the judgment of the court observed that the judge who has to determine the issue as to whether the primary limitation period should be disapplied:

“21 …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…”

In JL v Bowen [2017] P.I.Q.R. P11 Burnett LJ (as he then was) held:

“26 The logical fallacy which Lord Clarke MR was concerned with at [21] of the Nugent Care Society case and Auld LJ at [74(vii)] of the Bryn Alyn case was 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 at [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.”

From this analysis, it follows that I should adopt a three stage process:

There is no shortage of reported cases in which the courts have grappled with the issue of whether or not to disapply the primary limitation period in respect of a whole range of personal injury claims. The vast majority of these, however, turn very much on their own facts and, in any event, in this case, I can discern no significant dispute between the parties as to the central principles to be applied.

In Carroll v Chief Constable of Manchester Police [2018] 4 WLR 32, the Court of Appeal summarised the general principles to be applied at para 42. For the sake of brevity, and because no challenge is raised as to the soundness of the principles identified, I have omitted the references to the authorities cited in support:

“1.

Section 33 is not confined to a “residual class of cases”. It is unfettered and requires the judge to look at the matter broadly.

2.

The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), as is made plain by the opening words “the court shall have regard to all the circumstances of the case”, but to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and must be taken into a consideration by the judge.

3.

The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.

4.

The burden on the claimant under section 33 is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case.

5.

Furthermore, while the ultimate burden is on a claimant to show that would be inequitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant. If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant.

6.

The prospects of a fair trial are important. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. It is, therefore, particularly relevant whether, and to what extent, the defendant's ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents.

7.

Subject to considerations of proportionality, the defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount.

8.

It is the period after the expiry of the limitation period which is referred to in sub-subsections 33(3)(a) and (b) and carries particular weight…The disappearance of evidence and the loss of cogency of evidence even before the limitation clock starts to tick is also relevant, although to a lesser degree.

9.

The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction…I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant's ability to defend the claim.

10.

Delay caused by the conduct of the claimant's advisers rather than the claimant may be excusable in this context.

11.

In the context of reasons for delay, it is relevant to consider under subsection 33(3)(a) whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier…

12.

Proportionality is material to the exercise of the discretion…In that context, it may be relevant that the claim has only a thin prospect of success, that the claim is modest in financial terms so as to give rise to disproportionate legal costs, that the claimant would have a clear case against his or her solicitors and, in a personal injury case, the extent and degree of damage to the claimant's health, enjoyment of life and employability.

13.

An appeal court will only interfere with the exercise of the judge's discretion under section 33 , as in other cases of judicial discretion, where the judge has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has made a decision which is wrong, that is to say the judge has exceeded the generous ambit within which a reasonable disagreement is possible.”

Care must be taken not to embark upon the balancing act with any general preconceptions as to which factors are to be given greater weight than others. As Stuart-Smith LJ observed in Blackpool Football Club Limited v DSN [2021] EWCA Civ 1352:

“155.

I would hesitate before endorsing any suggestion that particular features should be given primacy when the court is conducting its balancing act, for two main reasons. First, in RE v GE [2015] EWCA Civ 287 McCombe LJ (with whom Pitchford and Lewison LJJ agreed) said that “no factor … can be given a priori importance.” Second, given the infinite variety of factual situations in which a claimant may come to the court asking for it to disapply the primary limitation period, it seems to me to be impossible to predict which features will hold sway, always bearing in mind that it is for the claimant who makes the application to satisfy the Court that it would be equitable in all the circumstances to allow the action to proceed and that the court should exercise its discretion in their favour. Furthermore, although the policy reasons that have caused Parliament to establish limitation periods are well known, so too are those that caused Parliament to temper the harshness of fixed-point cut-offs by a series of statutory provisions from 1963 onwards, including s.33. Thus, for example, a finding that a claimant could not have brought an action before they did is likely to attract significant weight, particularly if that inability is attributable to the tort that is to be the subject of the action. Precisely how much weight is to be attributed to different features of a case is quintessentially a matter for the Judge in the exercise of their discretion, applying the established principles summarised in [42] of Carroll that I have set out above.”

In A v Hoare para 86, in the context of sexual abuse claims. Lord Brown observed at para 82:

“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.”

In RE v GE [2015] EWCA Civ 287, McCombe LJ observed at para 59:

“…No factor, as it seems to me, can be given a priori importance; all are potentially important. However, the importance of each of those statutory factors and the importance of other factors (specific to the case) outside the ones spelled out in section 33(3) will vary in intensity from case to case. One of the factors will usually be the one identified by the judge in paragraph 29, by reference to the judgment of Bingham MR in Dobbie v Medway HA [1994] 1 WLR 1234 , 1238D-E, namely that statutory limitation rules are

“…no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition…but they are also based on the belief that a time comes when, for better or worse, a defendant should be effectively relieved from the risk of having to resist stale claims”.

Nor must it be forgotten that one relevant factor is surely the very existence of the limitation period which Parliament has decided is usually appropriate.”

In the same case, Lewison LJ observed:

“78.

Whether a fair trial can still take place is undoubtedly a very important question. However, it seems to me that if a fair trial cannot take place it is very unlikely to be “equitable” to expect the defendant to have to meet the claim. But if a fair trial can take place, that is by no means the end of the matter. In other words, I would regard the possibility of a fair trial as being a necessary but not a sufficient condition for the disapplication of the limitation period. 

79.

Accordingly, what the court must do, as the judge did in this case, is to go through the specific factors listed in section 33 (3) and then stand back and look at all the circumstances of the case…”

A particular feature of this case is that both Beck and Jenner are now dead. The potential significance of the death of alleged perpetrators has been considered in a number of decided cases.

In Murray v Devenish [2018] EWHC 1895 (QB) the claimant alleged that he had been sexually abused by a priest at a religious seminary as a boy in the early seventies. There were a number of evidential factors which tended to support his allegations and the court held that his claim was sufficiently strong to be prima facie credible. However, the alleged perpetrator, one Michael Riddle, had died in 1999.

It was argued on behalf of the claimant that the evidence against Riddle was so strong that his death was of no significant disadvantage to the defendant. Nichol J concluded on this issue:

“101.

I draw these strands together. The Claimant gave a credible account of the abuse which he says Riddle inflicted on him. His account is supported by evidence of what I accept could be characterised as ‘grooming’ by Riddle. The evidence of Father X and Christopher Speight was also credible and described abuse of a similar nature which they say they suffered at the hands of the same perpetrator. The letters from Riddle to the Claimant after his departure adopt a language of endearment which jars to modern ears and which Father Devenish agreed would have been unacceptable even in the 1970s. I also agree that it is significant that Riddle combined such language with religious references and imagery. Of course, when the letters were written, Riddle had left the school and the abuse had come to an end, but it is suggestive that the same combination may have been deployed while he was at the school. All of this is supportive of the Claimant’s case.

102.

But, and it is a major qualification, with Riddle’s death, the Defendant has been undeniably disadvantaged. Ms O’Rourke asked, perhaps rhetorically, ‘What could Riddle have said?’ He was unlikely to have admitted what would have been a crime and could not have been compelled to incriminate himself. And, she argued, how could he have denied the allegations in the face of such strong evidence?

103.

I do not accept this line of argument. I have agreed that there would have been a case for Riddle to answer; it may even be said that it would have been a strong case to answer, but on each occasion when the alleged abuse took place, there were only two people present: Riddle and the Claimant. When Ms O’Rourke asked her question, I was reminded of what Vice Chancellor Megarry said in John v Rees [1970] Ch. 345 at 402,

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.” Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.””

The judge went on to find, in the circumstances of that case, that the defendants were significantly prejudiced by the death of the alleged perpetrator.

A similar approach was taken by Lambert J inFXF v Ampleforth Abbey Trustees [2020] EWHC 791 (QB) in which the alleged perpetrator had died before the claim was brought:

“81.

I do not accept the submission that the combined effect of the evidence relied upon by Ms Ross is so compelling that Father Webb would have been unable to provide any sensible or plausible response. No doubt there are rare cases in which evidence of abuse is so convincing that the absence of any response from the alleged tortfeasor would make no difference, but this is not such a case.”

The application of the balancing exercise under section 33 falls to carried out in respect of each cause of action separately. This requires me to look at the following:

Strictly speaking, each individual act of abuse proved against each perpetrator gives rise to a separate cause of action but, in the circumstances of this case, it would be unrealistic to suggest that the outcome of balancing act could or should be different as between individual occasions of alleged abuse. I therefore propose to treat each of the complainant’s claims against the alleged perpetrators separately and the allegations of physical and sexual abuse against Beck separately without further differentiation between individual occasions. I note that a similar course was taken by the court in Murray v Devenish at para 73(iv).

The defendant has conceded, in my view realistically, that, save only in relation to AB’s case relating to Janner and in relation to the very narrow point of identification, each claim raises a case to answer.

I will, therefore, consider the issue of AB’s identification of Janner at this stage.

The defendant points out that AB told the police in interview on 28 April 2015 that he did not know who Janner was until he saw a photograph of him in the 1990s. His witness statement is confusing on this issue. In one paragraph he says, of the second occasion upon which they met, that: “He introduced himself as Greville Janner.” But in the following paragraph he says: “Janner asked if I knew who he was; I didn’t. He didn’t tell me his name or who he was.” In cross examination he said he thought that his recollection in the police interview was the more likely to be accurate.

In addition, he described Janner as “tall”, but it is not disputed that Janner was of lower than average height.

Nevertheless, I am satisfied that, notwithstanding the points made on behalf of the defendants on this issue, there is sufficient residual credibility with respect to AB’s identification of Janner to surmount the first stage hurdle. Even if his account of Janner identifying himself at the time of the abuse is inaccurate (as it may well be) it does not preclude a finding that AB, in any event, recognised Janner from a newspaper report in the 1990’s. His evidence on the point was not so severely undermined as to preclude the court from proceeding further. Accordingly, it is necessary to proceed to the section 33 balancing exercise in respect of all claimants against each alleged perpetrator.

Although, as I have already noted, the case of each claimant against each alleged perpetrator falls to be considered separately, a factor which they share is that the length of the delay is very considerable. In the case of each claimant, the primary limitation period expired on his 21^st birthday (subject to modest extensions to the next working day in the case of AB). This is a factor to be taken into account under section 33(3)(a).

None of these defendants suffered from a disability after that date which deprived him of the capacity to litigate. Subsection (d) of the section 33 list does not therefore help the claimants.

I shall return to the reasons for the delay later in this judgment.

I am not constrained to consider the subsections under section 33 in the order in which there are therein set out and, in the circumstances of this case, I consider it most convenient to take subparagraph (b) as my starting point without thereby seeking to accord to it any a priori importance. This relates to the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the claimant 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. I will, of course, return to the other subparagraphs in due course.

The defendants, rightly in my view, concede that, in the light of his convictions, Beck, even had he still been alive, would have lost all credibility. This does not necessarily mean that the accounts of the claimants would automatically be accepted but that any denials from Beck uncorroborated by other evidence would have been afforded no weight in this context.

The passage of time, however, has also inevitably rendered it significantly harder to obtain evidence from staff (most of whom are now deceased) or former residents about any specific interactions between Beck and AB and Philips. Neither of these claimants nor the defendant has called any witnesses either to corroborate or refute the individual allegations made.

This is a factor which plays an approximately equal level of significance with respect to the claims raised against Janner by all three claimants.

Over the years prior to his death, there was a growing body of evidence that Janner had sexually abused a number of children with whom he had come into contact over a period of many years. This much is plain from the information set out both in the Henriques Janner Report and the IICSA Janner Report. However, neither report was concerned directly with adjudicating on the truth of any or all of the allegations which had been made. Indeed, any such adjudication would have been inappropriate and unnecessary given the parameters of the issues to which the reports were formally directed.

The defendants have subjected the evidence of what is known of the allegations made by C1, C2 and C3 to detailed forensic scrutiny from which I have been invited to conclude that C1’s allegations were “fraught with difficulty” and that there is not enough information about C2 and C3’s allegations to afford the defendant the opportunity of providing a meaningful response.

I do not propose to perform a sedulous analysis of the relative weight to be afforded to each of the many points which the defendant seeks to make in this regard. The law of diminishing returns would soon be engaged in such a process. Looking at the position in the round, however, I am unable to accept the defendant’s invitation to place “no reliance whatsoever” upon the relevant material. On the other hand, I do not conclude that the evidence in the reports is sufficient, without more, to establish that Janner was a sexual abuser and that these claimants were three of his victims particularly when any account in response from Janner himself is no longer available.

In reaching this conclusion, I take into account Janner’s good character whilst recognising at the same time that its importance is potentially diminished by the fact that social status and reputation may possibly have been deployed as a deterrent, shield and camouflage against the making of prompt allegations of sexual abuse. Recent examples of this are too well known to require further particularisation.

The defendant has called evidence tending to show that Janner would not have had the opportunity to carry out the acts of abuse alleged against him. These include four former research assistants covering parts of the period between 1973 and 1985. The thrust of their evidence is that they accompanied him on his visits to his constituency and have no recollection of his visiting children’s homes generally or the Beeches specifically.

Janner’s son, Daniel, also spent time with his father in Leicester and says that his father was always accompanied on his visits there. He contends that Janner would never have associated with Beck who was a Liberal party councillor on Blaby District Council.

The defendant relies upon this evidence to suggest that Janner was a busy man who spent a high proportion of his time in his constituency accompanied by others leaving him with no opportunity to devote to the abuse of young people in care homes on the scale alleged. I have little doubt that these witnesses would have been relied upon in the event the case against Janner had ever come to trial. The defendant, however, concedes that, even taken as a whole, this evidence does not provide Janner with a cast-iron alibi.

It is only to be expected that Janner’s son and former close political assistants would prefer that this court should make findings which would either exonerate him or, at least, allow me to conclude that the claims against him have not been made out. However, the focus of my attention at this stage of analysis is upon the exercise of my discretion to disapply the limitation period. This gives rise to an inevitable tension between strategic aims which must often arise in cases such as this. The more compelling the evidence still available to the defendant to defeat the substantive claims the stronger the claimants’ arguments that the prejudice to the defendant brought about by the delay is modest. The less compelling such evidence is the greater the chance the claimants have of succeeding in their substantive claims in the event that the primary limitation period were disapplied.

In my view, the evidence relied upon in this context by the defendant is of some, but relatively limited, value on the substantive issue of the truth or otherwise of the allegations brought against Janner by the claimants. Importantly, however, I am satisfied that this type of evidence would have been of much greater assistance to the court but for the lengthy delays in bringing these claims. Memories would inevitably have been sharper and opportunities to correlate the timing of specific allegations of abuse to the whereabouts and activities of Janner and the company he was then keeping, whether through contemporaneous documentation or otherwise, would have been more readily susceptible to useful forensic scrutiny. In this regard, it is important to note that it is unnecessary for me to conclude whether such evidence would have assisted or undermined the defendant’s case. That would involve impermissible speculation. I am, however, satisfied that the delay has significantly impaired the cogency of the evidence which is now capable of being deployed to assist the court to get to the truth.

The evidential prejudice often caused by long delays may in any given case be offset by relevant contemporaneous documentation.

In this case, however, there is, in particular, no contemporaneous record of any complaint made by any of the three claimants of the abuse alleged to have been perpetrated upon them by either Beck or Janner. A substantial volume of material has been retained including social services records and day books relating to AB and Phillips but doubtless a significant quantity of other documentation is no longer available.

Of course, one perfectly plausible explanation for the absence of any documentary reference to contemporary complaints is that they were simply not recorded. Indeed, the defendant admits that its responses to complaints, in particular from external social workers with respect to the conduct of Beck were inadequate.

Accordingly, I take the view that little weight can be given to the absence of such records. However, that does not mean that each claimant’s allegations that such reports were made thereby fall to be accepted by default. The fact that claims of abuse were raised in a forensic context only after a very considerable period of delay gives rise to the need to give careful consideration to the impact of such delay on the reliability of the claims that such reports were made less formally in the first place.

Of course, I must avoid falling into the trap, at this stage, of reaching substantive conclusions about whether each claimant has made out his case on such evidence as has been deployed before me during the course of the hearing. It is nevertheless permissible for me to have regard to any respects in which the prima facie strength or weaknesses of their cases is liable to render the prejudicial impact of the delay potentially greater either to them or to the defendant as part of the section 33 balancing exercise. I will deal with each in turn.

I heard AB give evidence. I found that his evidence was prima facie capable of belief. There were however features which had the potential to cast a degree of doubt upon his credibility. These included the following:

In conclusion, in AB’s case it could not be said that the strength of his evidence was such as to mean that the potential impact of the delay would have made little difference to the outcome of his claim against the defendant in respect of both perpetrators.

I heard Phillips give evidence. He too was capable of prima facie belief. Again, however, there are confounding features:

In conclusion, as in AB’s case, it could not be said that the strength of his evidence was such as to mean that the potential impact of the delay would have made little difference to the outcome of his claim against the defendant in respect of Beck and, a fortiori, Janner.

I heard Betteridge give evidence. He too was capable of prima facie belief although I found his evidence the most seriously open to problems of credibility compared to the other two claimants. These are the main confounding features:

The claimants all say that the experts were agreed that in some respects the passage of time has made the assessment of any given claimant’s condition and prognosis more straightforward than it would have been had the claims been assessed in the early 1990’s. The experts have the benefit of a wealth of material now available that would not have been available if the claims had been assessed within a few years after the expiry of the primary limitation periods.

The exercise in assessing the claimant’s medical condition is therefore one that can be undertaken with the benefit of a retrospective analysis, rather than prognostication. This potential benefit was emphasised by Johnson J in TVZ v Manchester City Football Club [2022] EWHC 7 (QB) at [195]:

“195.

In one sense the delay has improved the evidence in relation to quantum. If these claims had been brought in time, then it would have been necessary to make a prognosis, forecasting how the abuse would impact on the claimants’ future lives. A consequence of the delay is that there is a much greater retrospective component to the assessment – it is possible to look back over 35 years of lived experiences (with, in some cases, documentary support) to see how, in fact, the abuse had an impact. The claimants have shown remarkable levels of fortitude and resilience. In a number of the cases, it might have been expected that the abuse would have had an even greater impact. The delay has, in that sense, resulted in a clearer evidential picture, and this is, to some extent, to MCFC’s benefit (in that the value of the claims that it is facing is less than might have been expected).”

However, any such advantages on the facts of this case are offset by disadvantages. They include the following:

On the particular facts of this case, I am satisfied that the length of the delay has rendered the evidence relating to the task of the assessment of the causation and quantum of damages less cogent.

In conclusion on the matters to be taken into account under subsection (3)(b) of section 33 of the 1980 Act, I consider that this factor weighs heavily in the balance against the disapplication of the primary limitation period with regard to all three claimants and both perpetrators. This weight is clearly even greater in respect of the allegations against Janner than those against Beck. However, I must now turn to consider the other circumstances of the case with an open mind as to what impact they may have upon my assessment.

In some personal injury cases, the determination of the reasons for delay is relatively straightforward and the assessment of their adequacy is uncluttered by any dispute over whether or not the injury was ever sustained in the first place.This situation arises, for example, in those cases in which the abuse is admitted but the defendant relies on a denial of vicarious liability.

In this case, however, it would be wrong for me to determine the issue of whether or not the assaults took place in advance of adjudicating on the outcome of the balance of the exercise of my discretion to disapply the primary limitation period. This is because any such finding would be based only upon such evidence which remains available to me which potentially lacks the cogency which it would otherwise have had but for the very delay in respect of which the limitation point is taken.

In this case, the reasons put forward by each claimant for his delay are inevitably predicated, in large part, upon the assumption that the abuse of which they complain in these claims was in fact carried out.

It is, indeed, well recognised that psychological injuries caused by abuse may operate so as effectively to disable any notional victim from commencing proceedings. In this context, each claimant relied upon the impact of the abuse they alleged they had suffered as, in part, lying behind their reluctance to start proceedings earlier. This was coupled with the contention that, given the contrast between their backgrounds and the status of those against whom the allegations were made, they did not think that they would be believed. A very full analysis is set out in the claimant’s written submissions which I have carefully considered.

However, as I have already observed, the delay has already significantly undermined the cogency of the evidence about whether the abuse took place at all. The soundness of the reasons given for the delay is therefore contingent both upon the uncertain foundations of the fact of abuse and upon conflicting medical evidence as to the cogency of these reasons which is, itself, based upon the uncertain issue as to whether each claimant is to be believed.

I have considered carefully the history of each claimant as set out in very considerable detail in the final written submissions presented on their behalf. They run to 58 paragraphs in all, and it would be disproportionate for me to embark upon a minute textual exegesis of every point made.

Nevertheless, even taken at their height, they are not, in my view, such as to attract sufficient weight as to outweigh the other factors to which I must have regard in the exercise of my discretion and, in particular, the impact of the delay on the cogency of the evidence in the case. I return in this regard to the observations of the court in Murray at para 116:

“In Carroll v Chief Constable of Manchester Police [2017] EWCA Civ 1992 in which Sir Terence Etherton M.R. said at [42(9)]:

'The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: Cain's case, para 73. I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant's ability to defend the claim.'

I take the Master of the Rolls to have been speaking of the two extremes between which there is a continuum and what is important is to consider whether the reasons for the delay are such as to qualify or temper the prejudicial effect of the delay.”

In this case, I am satisfied that, in the case of each complaint and in respect of each perpetrator, the reasons relied upon are not such as to qualify or temper the prejudicial effect of the delay sufficiently for them to play a decisive role in the balancing exercise. I note that, in the circumstances of this case, the deleterious evidential impact of the delay and the reasons for the delay are, in fact, two quite distinct features and so the application of section 33 involves the exercise of an evaluative judgment which inevitably does not involve comparing like with like but I must nevertheless reach an equitable conclusion on the limitation issue.

This includes the extent (if any) to which the defendant 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.

The claimants do not allege that the defendant deliberately withheld information from them although there were delays in producing documents and concluding enquiries (which were not complete until the day before the conclusion of final oral submissions). The claimants are critical of the defendant, with justification, for the late provision of a considerable volume of documentation.

There was a dispute as to whether late evidence relating to Rosemary Kay and Alan Mangham ought to be admitted. I would be minded to admit this evidence which was to the effect that neither reported to the IICSA that they had any recollection of relevant physical or sexual abuse at the Beeches. Mr Mangham said he had no recollections of either Beck or Janner. However, even if I were to exclude such evidence, it would have no impact on the final exercise of my discretion on the application to disapply.

In the event, I am not satisfied that the conduct of the defendant with respect to the provision of information or retention and disclosure of documentation has had a significant impact on the cogency of the evidence as a whole especially when compared with the deleterious effect of the claimants’ own delays.

The claimants each knew from a very early stage that the injuries which they alleged they had sustained were capable of giving rise to an action for damages. Betteridge and Phillips had already made similar claims long ago and AB did not suggest that any significant delay was caused by the fact that he was unaware that he had a legal right to make a claim.

This is not a factor which takes the balancing act significantly further in the claimants’ favour. There is no suggestion that any of them received medical advice the nature of which contributed to the delay and they took no steps to obtain medical advice for the purpose of presenting any of these claims until long after the primary limitation periods had elapsed

I have reached the conclusion in respect of all claims by all three claimants against both Beck and Janner that it would not be equitable to allow their actions to proceed by the application of the test and all relevant criteria, including those expressly set out in section 33(3) of the Limitation Act 1980. In doing so, I have carefully considered all of the voluminous documentation to which the parties have referred me and to the detailed oral and written submissions. I have not attempted to address or resolve all of the secondary issues in order to maintain some level of proportionality in a judgment which is already long.

It is against this background that I repeat the observations which I made in Laporte v Commissioner of Police of the Metropolis [2014] EWHC 3574 (QB):

“2.

At the outset, I would wish to say something about the way in which I propose to attempt to meet the challenge, which arises in acute form in this case, of producing a satisfactory judgment which is also one of manageable length. I have considered a very substantial quantity of material. The parties in this case have produced opening and closing written submissions which run to a combined length of about 280 pages all of which I have read carefully. These documents contain long and detailed catalogues of inconsistencies and implausibilities which each side contends have the effect of weakening the evidence of the witnesses called by the other. As one might expect, the documents also contain a substantial number of examples of material alleged to enhance the credibility of their own witnesses. Whilst paying tribute to the level of industry to which these well intentioned and articulate submissions attest I resist the temptation to try to reconcile and resolve all of the subordinate issues which have thereby been generated. As the Court of Appeal held in Customs and Excise Commissioners v A and Another [2003] Fam 55 :

“82 A judge's task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision-making process…

83 However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice.

84 Our system of full judgments has many advantages but one must also be conscious of the disadvantages.”

3.

I have tried to balance those advantages and disadvantages in what follows by giving reasoned decisions on those issues of fact which I consider to be central but without dealing with every peripheral issue the resolution of which would not in any event impact on my essential findings or upon the outcome of the claims.”

In summary, therefore, of particular relevance to the claims relating to Janner, is that his death has had a significant impact on the cogency of the evidence as a whole which is inadequately mitigated by the existence of any compensating contemporaneous documentary evidence or by the combined recollections of those who worked with him at the relevant time.

The cogency of the evidence relating to the claims by AB and Phillips against Beck are less affected by the passage of time to the extent that Beck’s death does not deprive the defendant of a witness with any residual credibility. Nevertheless, the combination of other features are such as significantly to undermine the cogency of the evidence by the very long delay in bringing proceedings.

The consequence of this finding is that it would be inappropriate for me to embark upon the process of adjudicating upon whether or not I would have found the claims to have been proved had there been no limitation issue taken. It follows that I make no factual findings that the claimants were abused or not abused by the perpetrators identified in these claims. Nor do I make any finding as to whether Janner was an abuser or not.

Accordingly there will be judgment for the defendant.