KXL & Ors v Murphy & Anor

This is the trial of a preliminary issue ordered by Master Leslie on 15^th January 2016 in the terms of paragraph 2 of that order:

“Whether, it being common ground that Ugandan law is the applicable governing law, the application of section 1 of the Foreign Limitation Periods Act 1984 would conflict with public policy and / or would cause undue hardship to the claimants within the meaning of section 2(1) and 2(2) of the Foreign Limitation Periods Act 1984?”

The three claimants issued their claims against the two defendants on 2^nd July 2015 claiming damages for personal injury caused as a result of acts of sexual abuse and assaults allegedly committed by the first defendant on the claimants and whilst the first defendant was subject to the second defendant’s direction and control so as to make the second defendant vicariously liable for those acts.

The value of the claims is said to be more than £15,000, but not more than £50,000, of which at least £1,000 relates to personal injury and, accordingly, is a suitable case for issue in the High Court.

The particulars of claim state that the second defendant is a charity registered in England and Wales, being a Roman Catholic Missionary Society of priests and religious brothers engaged in various activities including missionary and pastoral work with disadvantaged youths in Africa and promoting their Catholic education.

They contend that at all material times the first defendant, a religious brother, was a member of the second defendant or its religious order and was employed or used by the second defendant as such, being in the service of the second defendant. It is said he was subject to their direction and control.

It sets out briefly the circumstance in which, it is said, the first defendant was under the direction and control of the second defendant sufficient to make the second defendant vicariously liable for the acts of the first defendant.

The second defendant, by its defence, takes issue with the factual and legal bases of those assertions. In its Rejoinder it takes issue with whether it has been properly joined as the appropriate manifestation of the Mission to be a defendant in these proceedings. Those issues are not the subject of this preliminary issue.

The first claimant’s claim is set out, in summary form, in paragraph 7:

“The first claimant was born on 13^th December 1985. She was a member of Banyangabo in Hoima between about 1995 and 1996. She was sexually abused and assaulted by the first defendant whilst engaged in Banyangabo business or activities incidental thereto on several occasions. The sexual abuse and assaults comprised the first defendant hitting the first claimant’s bare buttocks with his hands and implements, including a metal chain, which has left permanent marks on the first claimant’s buttocks.”

The second claimant’s claim is summarised in paragraph 8:

“The second claimant was born on 6^th March 1986. He was a member of Xavarians in Kasambya between about 1999 and 2004. He was sexually abused and assaulted by the first defendant whilst engaged in Xavarian business or activities incidental thereto on about four occasions. The sexual abuse and assaults comprised the first defendant hitting the second claimant’s bare buttocks with his hands and implements including a metal ruler and wooden hairbrush. On one occasion, in about 2000, the second claimant was taken to the first defendant’s bedroom where his trousers and underpants were removed. The first defendant also took a girl, aged about 14, to his bedroom and pulled up her dress and removed her underwear. Both children were made to bend over the first defendant’s bed as he sat between them and hit and touched their buttocks and then gave them sweets and dismissed them.”

The third claimant’s claim is summarised in paragraph 9:

“The third claimant was born on 30^th November 1990. He was a member of Xavarians in Kasambya between about 1999 and 2002. He was sexually abused and assaulted by the first defendant whilst engaged in Xavarian business or activities incidental thereto on about three occasions. The sexual abuse and assaults comprised the first defendant hitting the third claimant’s bare buttocks with his hands and a wooden broom handle.”

The particulars of claim state that, by reason of the matters complained of, the claimants have suffered pain, injury, humiliation and hurt to their feelings, and have sustained loss and damage. The particulars of injury assert unhappiness, pain and psychiatric difficulties as a result of the sexual abuse and assault by the first defendant, details being set out in the medical report of Dr J. O’Neill, Consultant Psychiatrist, dated 1^st June 2015, in respect of each of the three claimants.

Particulars of special damage are pleaded in respect of each of the claimants as 15-20 one hour sessions of cognitive behavioural based psychological therapy at £100 per hour, totalling, in each case, a maximum £2,000.

The first defendant’s defence sets out detailed complaints of failure on the part of the claimants to comply with the pre-action protocol for personal injury claims which, it is said, has caused him prejudice.

The first defendant contends that the applicable law is the law of Uganda under which the claims are statute barred. He pleads the Ugandan Limitation Act 1959 Section 3(1) of which provides that the limitation period for personal injury claims founded on tort is three years from the date on which the cause of action arose. In respect of an infant, the limitation period is three years from the date when the person ceases to be under that disability (Section 21(2)). A person ceases to be an infant at the age of 18 (Articles 31(1) and 59(1) of the Constitution of the Republic of Uganda, and Section 2 of the Children Act TAP59 of the Laws of Uganda).

It is contended that the limitation period is absolute in Ugandan law. There is no provision for extension of the limitation period on any grounds. Once limitation has expired, the cause of action is extinguished.

The second defendant also pleads that the applicable law in respect of this claim is the law of Uganda and relies on the same statutory provisions to contend that the claims are time barred.

The claimants agree that the lex causae is the law of Uganda and do not dispute the relevant legislative provisions.

The defendants rely on the undisputed facts in support of their contention that under the law of Uganda the claims are time lapsed. The first claimant was born on the 13^th December 1985 and turned 18 on 13^th December 2003. She complains of the assaults in 1995 and 1996. In those circumstances the limitation period expired on the 13^th December 2006, the proceedings were not commenced until 2^nd July 2015, they are time barred.

The second claimant was born on the 6^th March 1986, turned 18 on the 6^th March 2004. The complaints are said to have arisen between 1999 and 2004. Pursuant to the law of Uganda, the limitation period expired on the 6^th March 2007. The proceedings were not commenced until 2^nd July 2015, and are time barred.

The third claimant was born on the 30^th November 1990 and turned 18 on the 30^th November 2008. He complains of assaults between 1999 and 2002. The limitation period provided for by Ugandan law expired on 30^th November 2011. These proceedings were not commenced until the 2^nd July 2015 and are time barred.

The first defendant has not pleaded substantively to the complaints made by any of the claimants, asserting that the complaints are insufficiently pleaded and accordingly, he is unable to plead to those allegations.

The second defendant makes the same complaint about the inadequacy of the pleaded case and, in addition, disputes that it is factually or legally vicariously liable for the acts of the first defendant.

The claimants, by their Reply, accept that the law of Uganda is the applicable law and that, pursuant to the law of Uganda, the claims would be conclusively time barred, but for the fact that, it is contended that, the application of the Ugandan Law of Limitation would be contrary to public policy and/or cause undue hardship to the claimants and that by reason of Section 2 of the Foreign Limitation Periods Act 1984 the Ugandan Law of Limitation should be disapplied to these claims.

For the purpose of this preliminary issue it was conceded in oral argument by the claimants that, if the Ugandan Limitation Act were disapplied, then, by default, the court should apply the Limitation Act 1980. The claimants would, on the facts, require the court to extend time pursuant to s33 of that Act. The parties were agreed that, in the event that the claimants succeeded on this preliminary point, I am not requested to deal with an application under s33. That would be for a later stage in the process.

The claimants have each issued Civil Evidence Act 1995 notices relying on their witness statements on the ground that to call them from Uganda to give evidence in person would be disproportionate and the Court timetable has not provided for this. I am content to receive their evidence, and that of the other witnesses for the claimant and the second defendant, in the form of their witness statements.

The first claimant sets out in some detail her background and her history and her description of the physical/sexual abuse she says she suffered at the hands of the first defendant. She describes what happened as very shameful. She was unable to tell her father as she felt it necessary to protect him from hurt. She says that in her tribe, some would think it was her fault and she would get a bad name; her father would be embarrassed. She could not report it to the police because she needed to protect her father, though she had told Catherine Spreckley at KISS and previously spoke to the second claimant who told her about others who had been beaten. She had told her husband in 2009, and he said forget about it, put it in the past, which she thought was the right thing to do.

The second claimant provided a similar personal history as well as a detailed description of the abuse of which he complains. He too describes feeling ashamed and embarrassed. He says he did not say anything to anybody because the first defendant supported his education and if he said anything his education would stop. He finished his education in 2004 but thereafter, he says, he could not report the first defendant because he would not be believed as the first defendant was a superior person. He knew that if he had an accident through the fault of another, it might be possible to go to Court and be compensated and to report, first to the police, to see what they had to say, but he did not do this because he was ashamed and wanted to put it behind him. He was only able to come forward when, in 2013, his friend told him that he was seeing lawyers from the UK, which gave him confidence he would be listened to.

The third claimant provides a similar personal history and description of the abuse of which he complains. He too felt ashamed and could not tell his mother as the first defendant was an important, respected, person in the parish. He was worried about shame and embarrassment. He did not believe that his mother would believe him, or want to, because the school fees were being paid. He too knows that if he has an accident at work he might be entitled to compensation and to go to the police and get advice from a lawyer. He agrees that he felt ashamed and lacked courage until recently, when he realised many others were speaking out, and it encouraged him to come forward.

Dr O’Neill is a consultant psychiatrist who has provided reports in respect of each of the three claimants. Of the first claimant she describes the medium to long-term psychological sequelae of abuse. The first claimant describes feeling angry, embarrassed and guilty, it has affected the way she sees herself and describes feeling self-conscious with poor self esteem. It has impacted on her relationship with males, particularly those in authority. Dr O’Neill expresses the opinion that her symptoms of guilt, distrust of others, avoidance, hyper-vigilance and re-living are in keeping with a diagnosis of enduring personality change after catastrophic experience, F62.0.

Of the second claimant, he has feelings of sadness, embarrassment and guilt with difficulties trusting others. He lacks confidence, has poor self esteem. He too fulfils the criteria for enduring personality change after catastrophic experience.

Of the third claimant, he has expressed a similar set of symptoms. He suffers intrusive memories, occasional nightmares, distrust of others, shame, guilt and low self confidence. He feels angry and seeks justice. He too fulfils the criteria for enduring personality disorder, post-trauma, characterised by distrust of others, social withdrawal, feelings of hopelessness, numbness and being on edge.

The second defendant relies on evidence of Father Obanya, the provincial superior of the Eastern African Province. His evidence concerns different aspects of the second defendant’s case, one of which is their contention that the present second defendant is the wrong defendant because of the way in which the Society is structured. He also addresses the question of alternative remedy in the form of a reference to the Ugandan Human Rights Commission (UHRC) and provides undertakings that the Ugandan sector, for which he is responsible, would fully cooperate with investigations undertaken by UHRC, waive any limitation and vicarious liability defences, agree to be bound by any UHRC decision concerning the first defendant, to take on the burden of the claimants legal costs, which UHRC thinks are necessary, appropriate and reasonable, to take on the financial burden of obtaining medical or psychiatric or psychological reports or assessment the UHRC may require and to take on financial responsibility for any awards for damages that the UHRC might award against the Ugandan sector and first defendant.

Father Richard Baawobr is the superior general of the Society of Missionaries for Africa. He endorses the evidence of Father Obanya on the structural issues and confirms that Father Obanya has authority on behalf of the Society to give the undertakings in his statement that he would support such undertakings and their implementation.

Mr Kaggwa is the Chairman of the UHRC. He describes its position under Article 51 of the Ugandan Constitution to protect and promote human rights and freedoms in Uganda. It has the power on its own initiative, or on a complaint, to investigate allegations concerning the violation of human rights under the constitution. He describes its independence, the professional standing of its members and staff, the facilities it offers to complainants, and its regional and international standing and ranking.

It describes the position of the UHRC tribunal within the Ugandan court system as well as the remedies it can award, including compensation, and the possibility of requiring an apology to be issued, as well as its role in assisting the enforcement of awards.

He gives his assurance that the UHRC can and will offer a free and fair local forum within which the claims can properly be handled in a swift and sensitive manner with a suitable remedy at the end if their complaints are upheld. The UHRC is accessible, having a regional office within Hoima, and it is uniquely placed to offer the claimants a sensitive and compassionate investigation. He describes the circumstances in which there can be an extension of the limitation period of five years from the date on which the alleged violation occurred, including where the person “was incapacitated by reason of age … or other just cause”.

It has jurisdiction to consider acts committed after October 1995, though it can have regard to prior acts as forming part of an ongoing series which continues beyond that date. He records that the UHRC’s commission has formally resolved that it stands willing and able to accept jurisdiction over any claim lodged by it by any claimant or third party on their behalf both now and in the future, and they are prepared to hear and adjudicate these claims as a viable and just forum for dealing with them in Uganda.

The Ugandan Limitation Act 1959 provides by Section 3 for limitation of actions for contract and tort. Sub section 1 provides

“The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose –

Actions founded on contract or tort …

Except that in the case of actions for damages for negligence, nuisance, or breach of duty … where such damages claimed by the plaintiff … consist of or include damages in respect of personal injury to any person, this sub-section shall have effect as if for the reference to 6 years, there was substituted a reference to 3 years.”

Section 21 concerns disability and the extension of limitation in such cases. It provides

“(1). If on the date when any right action accrued for which a period of limitation is prescribed by the fact, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date when the person ceased to be under a disability … notwithstanding that the period of limitation has expired …

(2). In the case of actions for damages for negligence, nuisance or breach of duty … where the damages claimed by the plaintiff … consists of, or includes damages, in respect of personal injuries to any person –

Sub-section 1 shall have effect as if for the words “6 years”

there were substituted the word “3 years” …”

Section 1 of the Foreign Limitation Periods Act 1984 provides as follows

“1.

Application of Foreign Limitation Law

(1)

Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter –

(a)

The law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings and

(b)

Except where that matter falls within sub-section (2) below the law of England and Wales relating to limitation shall not so apply ...”

This is not a case in which sub-section (2) to Section 1 applies.

Section 2 is entitled “Exceptions to Section 1” and provides

“(1)

In any case in which the application of Section 1 above would to any extent conflict (whether under sub-section 2 below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict.

(2)

The application of Section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings …”

The Limitation Act 1980 provides, by Section 11, for a special time limit for actions in respect of personal injuries. It provides for personal injury actions as follows …

Section 33 makes provision for discretionary exclusion of the time limit for actions in respect of personal injuries or death. It provides as follows

“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 sub-section 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 – [the statute then sets out a series of six specific factors to be taken into account] …”

There is a significant level of agreement on the principles to be identified as a result of the case law and other sources of authority.

I accept that the following principles are established from the relevant authorities.

The claimants contends that, where a defendant domiciled in England and Wales, in a position of trust, commits acts of the kind complained of in these claims, he should not be able to escape liability for those acts in the Courts of England and Wales merely by operation of a non-extendable foreign limitation period, such that, had the acts been committed in England and Wales they would have remained justiciable, albeit the application of Section 33 of the 1980 Act to extend time might be necessary in order to give the Court jurisdiction to hear the claims.

The claimants contend that the position should be the equivalent of that which pertains in the criminal jurisdiction. Section 72 of the Sexual Offences Act 2003 provides that a UK national or a resident who does an act in a country outside the UK, which is an offence under the law in force in that country and is one in England and Wales, constitutes a sexual offence of which the UK national or resident is guilty in England and Wales, so that proceedings may be brought against such a person in England and Wales as if the person had done the act here. It is contended that, by parity of reasoning, it would be against public policy for the Courts not to provide a civil remedy on the same terms as if the conduct had occurred here.

Reliance is placed on certain obiter statements in the House of Lords in A v Hoare 2008 1AC844, in particular, Baroness Hale, at paragraph 60, and Lord Brown, at paragraph 84 and following.

In support of the claimants’ case, I have been invited to consider a Bill recently introduced into the Scottish Parliament which abolishes the time limit applicable to an action in damages in respect of personal injuries where the claimant was a child and the act or omission constitutes an abuse of that child whether sexual, physical or emotional, subject only to a prohibition upon an action proceeding where the defender satisfies the court that it is not possible for a fair hearing to take place, where the defender would be substantially prejudiced and where that prejudice is such, having regards to the claimant’s interests in the action proceeding that the action should not proceed. I am also invited to consider the Limitation Amendment Child Abuse Act 2016 No 5 of New South Wales which permits an action for damages in relation to child abuse to be brought at any time and similar legislation in Victoria in 2015 and a Bill introduced to like effect in 2016 in Queensland.

Mr McDermott disarmingly accepts that there is no case in this jurisdiction in which it has been decided that, in the absence of legislation of the kind to which he has drawn my attention in other jurisdictions, the application of a foreign limitation period, which would have the effect of rendering time-barred a claim of this sort, where the lex causae is a foreign jurisdiction but where the defendant is domiciled or resident in this jurisdiction, would be in conflict with public policy – contrary to a clearly identifiable fundamental principle of justice.

In the course of argument, I have been extensively informed of the variety of limitation provisions in numerous jurisdictions. Some are more restrictive than those which prevail in this jurisdiction, others less so. None of these differences, on their own, have been sufficient to require the foreign limitation period to be disapplied pursuant to Section 2(1).

Mr McDermott has, in my judgment, helpfully identified what appears to be an emerging tendency in common law jurisdictions for legislation to be passed or considered which treats historic child abuse cases as special for the purposes of the limitation of civil claims based upon them. This is reflected in the introduction in a small number of jurisdictions of legislation amending existing limitation provisions so as to disapply those provisions in cases of historic child abuse. The obiter remarks in A v Hoare are, in my judgment, straws in the wind in the same direction.

In my judgment, given the way in which the Courts, the Law Commission and leading academic writers have described the way in which the Courts have, or should, approach the question of disapplying foreign limitation periods on grounds of conflict with public policy as requiring: a conflict with fundamental principles of justice readily and clearly identifiable; and have warned against approaching the matter on the basis of the “idiosyncratic inferences” of a few judicial minds, it is a bold and, in my judgment, an erroneous submission to suggest that this Court should conclude that the application in this case of the Ugandan Limitation Act would conflict with public policy as described in the authorities. Mr McDermott has done no more than identify an emerging direction of travel in a few, contiguous or similar, jurisdictions. In my judgment, those interesting insights as to how policy may develop in this regard provides an insufficient basis upon which to require this Court to anticipate such a possible legislative development in this jurisdiction by identifying the application of the Ugandan Limitation Act as constituting a conflict with a fundamental principle of justice. In my judgment, therefore, the application of Section 1 of the Foreign Limitation Periods Act 1984, in these cases would not conflict with public policy within the meaning of Section 2(1) of the 1984 Act.

Once again, there is no significant dispute about the legal principles which are to be derived from the authorities as follows

The evidence of the claimants and of Dr O’Neill is that bringing the claim has involved them re-living painful experiences which they had reasonably tried to put behind them. They were minors for part of the period since the accrual of the cause of action and have been suffering from psychological difficulties. The prejudice, or hardship, in not allowing the claims to proceed would be significant. The claims in this jurisdiction would be totally extinguished. It is understandable that bringing such claims may give rise to some delay in the claimants steeling themselves to do so, particulary having regard to their poor mental state caused by the abuse, the position of authority of the alleged abuser, the attitudes in Uganda towards the church and attitudes within the community towards those making such claims. It is said that to deny them the ability to make these claims in this jurisdiction, would cause undue hardship, which itself is evidence of a conflict with public policy under Section 2(2).

The defendants contend that the decided cases identify examples of where undue hardship has led to the disapplication of the lex causae limitation period. They include:

The defendants contend that those examples identify that, in order for there to be undue hardship, there has to be something unusual about the difficulties facing the claimant preventing or disabling them from commencing proceedings in time, or oppressive or misleading conduct on the part of the defendant preventing the claimant from commencing the proceedings within time, or misleading the claimant into believing the limitation defence would not be advanced.

I have received extensive argument for and against the proposition that the UHRC exists and is prepared to accept a complaint made by the claimants.

It is said that the essence of the conduct complained of would amount to a breach of human rights under Article 24 of the Ugandan Human Rights Code requiring respect for human dignity and protection from inhuman treatment. It is said that it falls under the rubric of: cruel, inhuman or degrading treatment or persecution where another person’s act or omission deliberately or unintentionally makes another feel fear, anguish and inferiority; that is humiliating and debasing; where intense physical and mental suffering are caused such as where a person is subjected to torture or cruel, inhuman or degrading treatment.

I have received evidence on behalf of the second defendant in the form of undertakings by the second defendant and by witnesses, that the claimants may: have access to the UHRC Tribunal to have their complaints considered as breaches of human rights; that remedies, if their complaints are allowed, can take the form of compensation and/or other remedies including a public apology; that the second defendant will fund the claimants’ reasonable legal expenses in bringing and pursuing such claims before the UHRC; and that the second defendant will satisfy any compensatory remedies as are awarded.

Mr McDermott contends that these undertakings are by no means watertight and that I should regard them as of doubtful effect. He also questions whether the UHRC would, in practice, be as willing to accept jurisdiction as Mr Kaggwa, the chair of the UHRC has, apparently, made clear in his evidence, and, Mr McDermott says, it is the claimants’ right to choose in what forum to bring these claims, provided they can do so legitimately.

In my judgment, the evidence of the claimants in explaining their difficulties in bringing themselves to commence these proceedings, whilst relatively brief, is clear and understandable. It reflects the common experience evident to the Courts in this jurisdiction of the difficulties which lie in the way of persons subject of abuse taking the initiative promptly to complain and/or commence proceedings and one understands fully and sympathises with their difficulties. These difficulties were recognised in the obiter statements to which I have been referred in A v Hoare and, I conclude, must have, to some extent, informed the legislative developments in some jurisdictions to which I have been referred.

However, it cannot be said that they were unaware of the fact that the abuse had taken place from the outset, nor that it was wrong, nor that they possibly had redress in law nor, as is common ground, that they must be deemed to have been aware of the limitation periods.

In my judgment, posing for myself the question identified in Naraji v Shelbourne, the answer I give is clearly “no”; the claimants’ hardship is neither more nor less than the consequence of the imposition of the time bar to which they were subject in making their claim. There is nothing in their circumstances which begins to bring these cases within the type of restricted categories of cases in which s.2(2) has operated to disapply s.1(1) of the 1984 Act.

In any event, and a significant factor in my conclusion, I am satisfied on the evidence before me, that the UHRC does provide a sufficient alternative route to obtain redress both monetary and reputational. I have no reason to do other than accept, at face value, the undertakings given by the second defendant and by witnesses called by them as to: the availability of a complaint to the UHRC and its willingness to accept such complaint; and the second defendant’s willingness to support, financially and in other ways, the making and pursuing of such complaints and to discharge the liability to make recompense, in the event that the complaints were upheld.

Accordingly, the answer to the second part of the preliminary issue is that the application of Section 1 of the Foreign Limitation Periods Act 1984 would not cause undue hardship to the claimants within the meaning of Section 2(2) of the Foreign Limitation Periods Act 1984.