Judgment

His Honour Judge Gosnell:

St William’s School was founded in or about 1865 as a reformatory school for boys. In 1933 pursuant to the Children and Young Persons Act and the Approved School Rules 1933 it became an Approved School. Boys could be placed or detained there for a maximum of three years up to the age of 17 if: they had been convicted of a criminal offence and received a custodial sentence; or they were found to be in need of care or protection; or they were not attending school regularly. In 1973 St William’s became an Assisted Community Home and thus became part of a co-ordinated planning system for children in the care of local authorities who placed such children there under care orders. The school was operated by the De La Salle Order and was situated in a rural setting near to Market Weighton including a residential facility. Various local authorities in the vicinity placed boys there where there were extensive grounds. It had classrooms, workshops, a place of worship, a swimming pool, recreational facilities and a working farm. The children were accommodated in separate group units known as houses.

The Defendants fall into one of two categories: firstly those connected with or representing the Roman Catholic Diocese of Middlesbrough, responsible for the management of St William’s (variously referred to as the “Diocese of Middlesbrough” or the “Middlesbrough Defendants”) and secondly the representatives and/or members of a lay Catholic teaching order, the Institute of the Brothers of the Christian Schools (De La Salle), (variously referred to as the “De La Salle Institute” or the “Institute”). The Institute had a community of brothers living at St William’s some of whom worked as teachers at the school alongside lay teachers. Most but not all of the alleged abusers had been members of the Institute.

A number of former pupils at the school alleged that they had been sexually or physically abused by teachers or members of staff at the school. Proceedings were issued and a Group Litigation Order was made by His Honour Judge Hawkesworth QC on 5^th September 2006 in relation to approximately 170 Claimants. I am told there are now 249 Claimants. There were preliminary issues in the group action which substantially delayed the progress of the claims. On 3^rd November 2009 the issue of whether both sets of Defendants were potentially vicariously liable for the abuse allegedly committed by their employees, servants or agents was tried by His Honour Judge Hawkesworth QC. He found that only the Middlesbrough Defendants were potentially liable. The Claimants and the Middlesbrough Defendants appealed to the Court of Appeal and the appeal was dismissed in Various Claimants v Catholic Child Welfare Society [2010] EWCA Civ 1106. The Middlesbrough Defendants then appealed to the Supreme Court and on 21^st November 2012 the court granted the appeal and found that both the Middlesbrough Defendants and the De La Salle Institute could be held vicariously liable for the abusive acts of the Brothers even though the Institute was not technically responsible for the management of the school: Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56.

I intend to give a summary of the facts which form the background to this case. Many of them are uncontroversial although the facts surrounding the alleged abuse are all disputed. The Claimant made three witness statements in these proceedings and I also had sight of a statement given to the police on 7^th June 2001. The following summary is taken from the Claimant’s evidence together with the documents that were referred to me during the trial. At the end I will give a brief summary of the evidence called by the Defendants.

The Defendants deny that AB suffered either physical or sexual abuse whilst he was a pupil at St William’s. Brother James was called as a witness and was able to recall his career at St William’s, first as a teacher from January 1968 until October 1975 and then as Deputy Headmaster until he was appointed Headmaster in 1976 where he remained in post until August 1990. He conceded that he had been tried and convicted of sexual offences against pupils at St William’s in 1993, 2004 and 2015. In his evidence at trial he contended that he had been wrongly convicted of a number of offences both in 2004 and 2015 which he had and still denied. He admits abusing a number of boys between 1972 and February 1980 when he ceased to act on his urges when a boy he had abused made a complaint about him. He denied abusing boys anywhere other than his domestic quarters and a house in Levisham. He had no specific memory of AB as a pupil but having read his statements denied abusing him mainly on the grounds that he did not abuse boys in circumstances where the act might be witnessed by others.

19 The Defendants also put the Claimant to proof on his case on causation of injury (in the long term) and quantum but I do not need to go into further detail at this stage.

In many cases the assessment of the credibility of competing witnesses is crucial to the proper consideration of the evidence in the case. This is particularly true of allegations of sexual abuse which, by their nature, are unlikely to be capable of independent verification either by a witness or a recording in a document.

In his instructive article entitled The Judge as Juror: The Judicial Determination of Factual Issues, published in Current Legal Problems 38, Mr Justice Bingham (as he then was) made this observation:

"The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:

(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness's evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) the demeanour of the witness."

Mr Justice Bingham went on to conclude that the first three of the tests may be regarded in general as giving a useful pointer to where the truth lies, whereas the fourth test is more arguable. As regards the fifth, he was of the view that:

"the current tendency is … on the whole to distrust the demeanour of a witness as a reliable pointer to his honesty."

“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, references to the witness’ motives and to the overall probabilities can be of very great assistance to a Judge in ascertaining the truth.”

Whilst this extract speaks of cases of fraud it could equally be applied to cases such as the present one where it would not be difficult to find motives why either the Claimants’ or the Defendants’ witnesses might choose to lie.

On any view the recollection of witnesses about events which occurred many years ago is important in this case. The reliability of a witness’s recollection is difficult to assess independently of an assessment of their likely truthfulness. The difficulty was identified and analysed in a recent decision of Mr Justice Leggatt in Gestmin SGPS S.A. v Credit Suisse (UK) Limited and others [2013] EWHC 3560 (Comm) where he said:

“15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

23 It is in this way that I have approached the evidence in the present case.”

Mr Justice Leggatt was dealing with a commercial case in this litigation but it seems to me that the analysis is apposite to any case where witnesses are being asked to give evidence from their recollection of events many years previously.

“There are additional problems in assessing the case because of the passage of time and the effects of memory. It is normal and usual for memories to become distorted over time. Recall is a creative process in which memories are distorted to fit the beliefs, expectations and values of the person recalling the events. It is an unconscious and automatic process”

“In Mr Godsi’s opinion the inconsistencies in recall can also be explained by the inherent difficulties in recalling distressing, traumatic incidents and the events surrounding them (dissociation and difficulties attending to events at the time of trauma; subsequent avoidance of recall and mental rehearsal of events; and a lack of linguistic structure to the memory of traumatic memories which are not verbalised)”

The Defendants in this action contend that the claim is barred due to the law on limitation of actions and the Claimant seeks the courts discretion in allowing it to proceed. This is the first issue I must determine before dealing with any other issues in the case. I had considerable assistance from counsel in the case in identifying the relevant authorities and many were referred to during the trial. I do not intend to summarise every case I was referred to as this would make this judgment too lengthy but I have carefully considered all the authorities to which I was directed.

Section 11

(1) This section applies to any action for damages for negligence, nuisance or breach of duty …. where 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.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) …. below

(4) …. the period applicable is three years from:-

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.

33 (1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –

(a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [by section 11A] or (as the case may be) by section 12;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

“In Horton v Sadler [2007] 1 AC 307 the House rejected a submission that section 33 should be confined to a "residual class of cases", as was anticipated by the 20th Report of the Law Reform Committee (Cmnd 5630) (1974) at para 56. It reaffirmed the decision of the Court of Appeal in Firman v Ellis [1978] QB 886, holding that the discretion is unfettered. The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.”

“85. First, insofar as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at para 52 that is likely to bear significantly upon the possibility of having a fair trial.

86. Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb , a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable 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.

87.Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffmann at paragraph 36). It is not to be supposed that the exercise of the court's section 33 discretion will invariably replicate that position.”

"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.”

“The application of this test in cases involving allegations of historic child abuse was considered by the Court of Appeal in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516, where a number of previous authorities were reviewed. In summary, and without attempting to be exhaustive, the position is as follows:

i) The burden is on the claimant to show that it would be equitable to disapply the limitation period.

ii) Where more than one claim is brought by a claimant, the discretion should be exercised separately in relation to each claim.

iii) The longer the delay, the more likely it is that the defendant will be prejudiced, but this will always depend on the issues and the nature of the evidence going to those issues. Delay is not critical in itself, but only to the extent that it has an effect on the defendant’s ability to defend the claim.

iv) If a fair trial is no longer possible, that will be the end of the matter. An action cannot be allowed to proceed if that would result in an unfair trial. But if a fair trial is possible notwithstanding that there is some prejudice, the balance of injustice needs to be considered, weighing whatever prejudice the defendant has suffered in the light of all the circumstances of the case.

v) The troubled background of many claimants complaining of child abuse must be taken into account. This will include, where applicable, the fact that the lives of many such claimants deteriorate into alcohol and drug abuse and crime, often caused to some extent by their childhood experiences. The law must also recognise the inhibitions which abuse will often cause, making it difficult or impossible for claimants to describe what has happened to them, sometimes until well after they reach adulthood. Such considerations may provide a good reason for delay in commencing proceedings.

vi) Developments in the law relating to vicarious liability (and, I would add, non-delegable duties) have made it easier for a claimant to establish liability against an employer or similar defendant because, in cases where the defendant is responsible in law for the conduct of the abuser, all that the claimant needs to prove is the fact of the abuse; in such cases it is no longer necessary to prove a systemic failure on the part of the defendant; in consequence, the evidential focus in such cases is likely to be narrower than it previously was; so too, therefore, the effect of delay on the possibility of a fair trial will generally involve a narrower enquiry.

vii) Ultimately the discretion is wide and unfettered, with all relevant circumstances needing to be taken into account, including those mentioned in section 33 itself, although this list is not exhaustive.”

“73. It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.

74. Although the delay referred to in section 33(3) is the delay after the expiry of the primary limitation period, it will always be relevant to consider when the defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence: see Gwentoys. If, as here, a defendant has had early notification of a claim and every possible opportunity to investigate and to collect evidence, some delay after the expiry of three years will have had no prejudicial effect.”

35. Expert evidence on the issue of limitation

Both Professor Maden and Mr Godsi were asked to comment on the reasons for and the effect of the Claimant delaying for many years in bringing a claim. Professor Maden considered that the Claimant has never lacked capacity and there is nothing which has prevented him from complaining earlier. Mr Godsi was of the opinion that there are psychological reasons why the Claimant delayed coming forward and these would be a typical reaction for victims of childhood sexual assaults. He considered the following were relevant:

36. Both experts agreed however that whatever the reasons for the delay the fact that the alleged events took place many years ago has complicated the work of the expert. They agree that there are important missing records. They agree it would have been easier to assess the case had the claim been brought within time limits. Professor Maden considered that there had been a deterioration in the cogency of the evidence over time and that there were additional problems resulting from the Claimant’s unreliability. The difference in opinion between the experts merely reflected their overall view of the case. Mr Godsi felt that the Claimant was merely behaving as a typical victim of child abuse is often found to behave whereas Professor Maden was more sceptical given the Claimant’s inconsistency and, he would say, unreliability as a witness. The issue is one which the court has to resolve and dependent to some extent on its findings of fact.

37. The parties’ submissions on the issue of limitation

Generic

Both parties made generic submissions which applied to all five cases I heard. Leading Counsel for the Defendants pointed out that there is a tension between the court deciding on the reasons for the delay in issuing proceedings without actually making a finding of fact whether the abuse in fact occurred. The Defendants characterise the various Claimants as not being psychologically disabled from complaining of abuse but expressing the explanation that they were ashamed and embarrassed and had put the issue to the back of their mind, only for these concerns to evaporate when the chance of compensation arose. The lack of contemporaneous documentation in many cases is a serious prejudice to the Defendants it is claimed. In the case of IJ there were 15 volumes of documents, 14 of which contained various contemporaneous records. This, the Defendants say, puts into context the documentation which can be available when a claim is made more promptly albeit still outside the primary limitation period. The question is whether the absence of these documents creates a material prejudice to the Defendants, or, it was submitted, the risk of material prejudice given that the content of the missing documents cannot be known. The case of IJ showed that the House Log recorded the Claimant’s welfare and demeanour at the relevant time and records of social work visits were useful in recording what the Claimant had said about whether he was happy and wished to stay at St. Williams. The Defendants submit that if the claim was brought in time they would have been in a materially better positon to defend it with the numerous documents which would then have been available. As St William’s had closed in 1992 (as far as these Defendants at least were concerned) it was fanciful to expect them to have retained all relevant documents when these claims were not intimated until 2005. The court was reminded that the burden was on the Claimant to persuade the court to exercise its discretion under s 33 Limitation Act 1980.

38. Leading Counsel for the Claimant recognised that there may be missing documents but these would never assist the court in deciding whether the abuse actually took place because if it had taken place it would never be recorded. There are accurate records of when each Claimant was at St William’s and when each of the alleged perpetrators worked there. It was submitted that the documentation would only be relevant to peripheral issues and would mainly be used to attack the credibility of the Claimants. This would be of limited value as all the Claimants have extensive criminal records including offences of dishonesty in any event. The appropriate test is whether it is equitable to allow the claim to proceed and there is no minimum number of documents required for a fair trial to take place. Although it was accepted that Mr Hartnett had died, if the case had not gone on appeal to the Supreme Court he would have been alive when the trial took place.

39. It was submitted that it was not surprising that some of the Claimants would respond positively to an advertisement in “Inside Time” about the right to make a claim arising from abuse at St William’s. Before then the shame and embarrassment of the abuse had prevented disclosure but, it was submitted, the individual Claimants would know they were not alone, the abuse would be investigated and the fact that it was advertised in a publication for prisoners meant that their convictions would not bar them from justice. The fact that victims of child sexual abuse are often too ashamed and embarrassed to discuss or report the abuse is well recognised both by psychologists and in previous legal authorities. Victims of male on male abuse, particularly where the victim is a teenage boy where there is a power imbalance with the perpetrator are particularly prone to silence. Other frequent characteristics are, inconsistent or incremental reporting, and voluntary return to the place where the abuse took place. It was submitted that false memory was unlikely to occur in Claimants where there was no suggestive intervention from dubious therapists. Even if missing documents were to show that the Claimant at the time expressed positive thoughts or the wish to stay longer at, or return to St William’s that would not be probative or helpful evidence where victims of child sexual abuse often express such thoughts. It was pointed out that James Carragher admitted abusing 13 boys and there appeared to be no contemporaneous record of outward signs or symptoms leading to the suspicion that abuse had taken place.

40. Leading Counsel for the Claimant also made submissions about the context in which the abuse took place given that St William’s was a home with a moral and legal duty to protect vulnerable young boys. It was submitted that the Defendants as organisations managing the home should have been aware from information in their possession in the 1970’s and 1980’s that children were at risk. There were at least two complaints against Brother James and one against Father McCallen which should have rung alarm bells and caused more robust investigation into the risk of abuse at the time. It was submitted that this could be considered as relevant to all the circumstances of the case in s 33 (3) Limitation Act 1980.

41. Specific to the case of AB

The Defendants rely on the very lengthy delay in this case in commencing proceedings and the difficulties caused by such a delay. Even if the Claimant is believed that he was too embarrassed and ashamed to report the abuse it does not explain why he was able to report at least some of the abuse to the police in 2001 yet do nothing about his claim until 2005 when he received a letter from Jordan’s solicitors inviting him to make a claim. In relation to the cogency of the evidence the Defendants rely on the missing documents, particularly the social services records (which here are very limited), AB’s personal file at St William’s and the House Log Books amongst other missing records. It is not possible to speak to any of the four people who AB says he made a contemporaneous complaint to because they are either dead or untraceable. In particular the social worker Mr Pearce would have been a useful witness. It has not been possible to trace the nurse Helen Collins either. AB attained his majority only two years after leaving St William’s and it is submitted he must have known that what happened to him was wrong. In the light of the long delay between the home closing in 1992 and this claim being made in 2005 the Defendants cannot be reasonably blamed for any of the missing documents.

42. The Claimant relies on the fact that he complained of abuse at the time and nothing was done. This contributed to his reluctance to make a claim coupled with the shame and embarrassment he felt and the wish to suppress painful memories. He also used alcohol to “block out” memories of the abuse. In the circumstances the delay in taking action in this claim can be explained by the psychological effects of the abuse. Although it is accepted that some witnesses have died in the interim the alleged perpetrators Brother James and Brother X were available to give evidence and there was a full statement from Mr Hartnett. It is submitted that by 2003/2004 the Defendants must have known of the allegations of abuse made against Brother James about abuse at St William’s and they could and should have commenced their own investigations then. The Claimant suggests the court should recognise his reasons for not instituting his claim earlier as consistent with the actions of a victim of childhood sexual abuse and allow his claim to proceed.

43. Analysis of the exercise of discretion under s 33 Limitation Act 1980 in this case

I accept the burden is on the Claimant to persuade the court to exercise its discretion to disapply the limitation period. The overarching test is whether it would be equitable to allow the action to proceed and the court has an unfettered discretion and is enjoined to have regard to all the circumstances of the case. The court should in particular have regard to the particular circumstances set out in section 33 (3) and it would be appropriate to consider each in turn.

44. Section 33 (3) (a) the length of, and the reasons for, the delay on the part of the plaintiff

The Claimant alleges that the abuse took place between October 1973 and January 1975. The Limitation period started on 25^th January 1977 and expired on 25^th January 1980. Proceedings were issued on 18^th July 2005 which means that the delay in issuing proceedings after the limitation period expired is 25 years and six months.

45. The reasons for the delay are essentially that the Claimant was too embarrassed and ashamed to report the abuse, for reasons which are common to many victims of child sexual abuse (see above) and that he was further deterred by his experience in reporting the abuse at the time only to find his complaints ignored by those in authority. These reasons were asserted briefly in the Claimant’s statements and repeated to the two expert witnesses. I recognise the tension referred to by Leading Counsel for the Defendant in making an assessment of the truth of these assertions without descending into a finding of fact about whether the abuse in fact occurred. It seems to me that the only way I can resolve this difficulty is by making an assumption that the abuse in fact occurred, or at least may have occurred, for the purposes only of this assessment otherwise I will fall foul of “putting the cart before the horse” as deprecated in authorities referred to above.

46. Whilst I recognise and appreciate that it is typical for a victim of child sexual abuse to want to both repress the memory and avoid disclosure of the abuse the justification for non-disclosure is not self-proving and requires some assessment of the individual alleged victim. This Claimant was not an effective witness when giving evidence. He had some difficulty hearing the questions and although a loop system was offered to him on a number of occasions he declined to use it. He gave his answers in a brief and staccato fashion with little detail being provided. When inconsistencies were put to him between statements he had made previously he was unable to explain them and I was not entirely convinced he had properly heard or understood the question. Whilst I could understand why a victim of child sexual abuse might only tell part of the story first, giving sequential disclosure of more sensitive information as time went on, this did not wholly explain his particular history.

47. It emerged in evidence that he first disclosed the abuse to his mother in 1993 but then did nothing until 2001 when he was interviewed by the police and disclosed sexual abuse by Brother James and a vague allegation against Brother X. In 2011 he expanded this allegation to digital penetration and it was not until 2014 that he first made a much more serious allegation of sexual abuse against Brother X and an allegation against Mr Hartnett of physical abuse. Whilst I can understand the late disclosure of the allegation of digital penetration it is difficult to understand why the allegations against Mr Hartnett and the more specific allegations against Brother X could not have been made when similar allegations were reported against Brother James in 2001. It was not particularly clear why the Claimant made no effort to make a claim between 2001 and 2005 as by then he had made a significant disclosure to the police and he said in evidence that by then he knew he could make a claim. So whilst I accept that shame and embarrassment can provide a good reason for a victim of child sexual abuse not to make a timely claim the argument was not put forward in a particularly convincing way in evidence by this particular Claimant.

48. 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 in time

The evidence given by the Claimant in the witness box was not particularly cogent for the reasons I have expressed in the preceding paragraphs. It is difficult to assess why the Claimant was such a poor historian but the passage of time must be one explanation as must also be his long history of alcohol abuse. There are often inconsistencies between what a Claimant says in various statements when compared with what is said to expert witnesses or contained in contemporaneous documents. What separates a convincing witness from a potentially unreliable one is how effectively they are able to explain these inconsistencies. Regrettably this Claimant often did not appear to recognise there was an inconsistency, and when he did was unable to adequately explain it.

49. In one sense the evidence of the Defendants’ witnesses was just as cogent despite the passing of time. Whilst none of the alleged perpetrators actually remembered the Claimant specifically they were all able to put forward robust denials and give reasons why those denials should be accepted. They did not need to refer to documentation in order to be able to do so. It is clear that the amount of background documentary evidence in this case is very limited, particularly when compared with the case of IJ where there were 15 volumes of documents. Here there were two volumes of which half of the first volume were taken up by statements of case, witness statements and expert reports. It would be wrong however to judge every case by the standards of the case of IJ and find automatic prejudice to the Defendants due to the absence of a huge range of documents many of which had no real bearing on the case. I have to concede however that the full social services records which it would appear were in existence in 2001 [F1/C/99] are likely to have contained material which would have been helpful to the Defendants and expert witnesses and the House Log Books have been shown in other cases to contain material that the Defendants have found helpful to cast doubt on the credibility of other Claimants.

50. In my view the most significant prejudice to the Defendants lies in the inability to call specific witnesses at the trial. Whilst I accept that Mr Hartnett’s death has prevented them from calling him it would be wrong to hold this against the Claimant as he would have been alive to give evidence had the Defendants not had to go to the Supreme Court to establish the vicarious liability point. In this case the Claimant claims to have reported the abuse to Mr Mulligan, Brother Reginald, Mr Pearce and Mr Brisbane. Mr Mulligan died on 25^th June 1990 and Brother Reginald on 11^th May 2010. Mr Brisbane appears to have died in 1985 and the Defendants have been unable to trace Mr Pearce. As the limitation period expired in 1980 three of the four witnesses have died in the intervening period and it can be inferred that it would have been much easier to trace Mr Pearce in the 1980’s when it can be assumed he was perhaps still employed as a social worker. If the Defendants had been able to call these witnesses perhaps to deny that they had received a complaint from this Claimant it could have had a significant effect on the way a court would view the Claimant’s case and particularly his credibility.

51. The Claimant claims in this case that on at least two occasions he suffered abuse by way of masturbation which was so severe it caused his penis to bleed. He alleges that he was taken to a doctor for medical treatment. The Defendants’ case is that there was no doctor employed at St William’s and pupils were normally referred an employed nurse. During this Claimants time at St William’s two nurses were employed; Isabella Brisbane who died on 30^th April 1996 and Helen Collins who has not been traced. Again, if the Defendants had been able to call these witnesses to potentially deny having treated what would have been a very unusual injury it would have been likely to give them a forensic advantage.

52. 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

This particular provision is normally concerned with how a defendant responds to a claim being made, for example if disclosure is delayed or obstacles placed in the claimant’s path. No such allegations are made in this case but the Claimant has contended that the Defendants should have investigated the allegations of abuse more thoroughly when they became aware that Brother James and Brother X were being investigated between 2001 and 2003. I am not convinced this is a fair criticism. It seems to me that the Defendant would be justified in leaving the investigation to the police, if only to ensure they did not interfere with the police enquiry. By this time the home had been closed for 10 years and there was no immediate need for an investigation into historic allegations when they were aware the police were already carrying out such an investigation.

53. The duration of any disability of the plaintiff arising after the date of the accrual of the cause of action

Here the disability ended on the Claimant’s 18^th birthday namely on 25^th January 1977 approximately two years after the last allegation of abuse.

54. The extent to which the Claimant 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

On the Claimant’s case he was unable to consider taking action about the abuse until he learnt others were also making a claim in 2005. I have to bear in mind however that he would have known even at aged 18 that what had happened to him was wrong and he had made disclosures to his mother in 1993 and to the police in 2001. He accepted in evidence that he knew in 2001 that he could make a claim but no action was taken until 2005 without real explanation for that latter delay.

55. 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

I accept that the Claimant knew enough about his cause of action on attaining majority but on his case was disabled from pursuing his claim due to the psychological effects of the abuse. He first took legal advice in 2005.

56. All the circumstances of the case

I will deal here briefly with the novel submission put forward by Leading Counsel for the Claimant that the high level of moral culpability on the part of the perpetrators and Defendants should inure for the benefit of the Claimant in the balancing exercise. Whilst there is no doubt that the perpetrators were morally culpable and that the Defendants could reasonably be criticised for the way they investigated the allegations of abuse which preceded the police prosecutions I am not convinced they should weigh significantly in the Claimant’s favour. If they did it would be difficult to see how a Defendant could ever succeed on the section 33 issue when attempting to defend an allegation of child sexual abuse. There would always be a high level of moral culpability attached to the allegations. The system of compensation for the commission of a tort in this country does not involve an assessment of moral culpability. The breach of duty may be accidental (in a strict liability case), negligent, reckless or intentional. The compensation is assessed on the same basis (other than in cases of aggravated or exemplary damages).

57. In previous decisions under section 33 the court does not normally pay particular attention to the strength or weakness of the claim (unless it is very weak) and so it is hard to see why the court should take into account how morally culpable a defendant is when deciding whether to excuse a claimant for not issuing proceedings within the limitation period. As Parker LJ showed in Hartley v. Birmingham City District Council [1992] 1 WLR 968, CA, at 979G-H, such a finding is usually neutral on the balance of prejudice:

" … in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff's case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied … as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend."

58. Decision on the exercise of discretion under section 33

I have considered all the circumstances of the case including the particular circumstances set out in section 33 (3) as adumbrated above. On any view this is a historic claim where witnesses now are being asked to recall events which occurred between 41 and 43 years ago. The proceedings were issued over 25 years after expiry of the limitation period. I have taken into account the Claimant’s reasons for the delay in issuing the claim. They are common to many victims of child sexual abuse but were not expressed in a particularly convincing way by this claimant. There is clear evidential prejudice to the Defendant due to the passage of time which I have identified in paragraphs 49-51 above. The rules on limitation 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” per Sir Thomas Bingham in Dobbie v Medway [1994] 2 WLR at 1238. I have reached the conclusion that this claim is indeed stale, given the passage of time since the expiry of the limitation period, coupled with the evidential prejudice to the cogency of the Defendant’s evidence again caused by the lengthy delay. In my judgment, it is not fair in all the circumstances for a trial to take place and, as a consequence, it would not be equitable to allow the action to proceed. I therefore intend to dismiss the claim.

59. Was the Claimant in fact abused as he alleges?

In the light of my finding on limitation this is no longer relevant but in case of a successful appeal on the limitation finding I will give a brief judgment on this issue and make certain findings of fact. It will be less detailed than it would have been had I allowed the action to proceed.

60. Having assessed the Defendants’ witness I cannot find that abuse could not have occurred. Whilst Brother James Carragher (as he then was) was superficially convincing I did not accept his evidence that he had only ever abused four boys. I am aware that in 2004 and 2015 he was disbelieved on his oath by a jury who were deciding the case to a criminal standard of proof and they found that he had in fact abused further boys named in the indictments that resulted in guilty verdicts. I believe the total number of victims for which he has been convicted is thirteen. I must accept that there is every possibility that the actual number of victims is more than thirteen and could theoretically include the Claimant.

61. Brother X (as he then was) gave evidence over a video-link so it was more difficult to judge his demeanour than if he had been in court. Having said that the impression I gained was of a life-long educator who was proud of his work and who bitterly resented being accused of offences which he found both embarrassing and distasteful. He was the subject of robust but fair cross-examination and dealt with the questions sensibly and fairly in the main. Whilst some of his ideas (for example boys massaging other boys with oil) may seem curious now I have to bear in mind that the 1970’s were a different age where more innocent interpretations were generally put on the treatment of children. Similarly, the fact that he slept in a different room in The Unit from one of the pupils under “lock-down” I do not regard as suspicious by the standard of the age even though it could probably not happen now in a well-run organisation.

62. Although I had a statement from Mr Hartnett and it dealt in general terms with the allegation of brutality I did not have the opportunity to observe him give evidence and form an impression of his veracity and reliability. I have to bear in mind that a number of Claimants have made very similar allegations against Mr Hartnett involving his use of knuckles as a means of chastisement and I am unable to see how he would have been able to deal with this issue in cross-examination even before his sad demise. Whether I accept or reject the allegation may depend in an individual case on how convincing the Claimant is.

63. I have already alluded to the manner in which the Claimant gave his evidence and his inability to recall sufficient detail to make his account on a disputed issue compelling or convincing. I have to bear in mind that he has a number of convictions for dishonesty and that the experts agreed he now has a dissocial personality disorder which would give rise to further concern about his credibility. His history of chronic alcohol abuse is also agreed to be known to impair short and long term memory according to the experts.

64. There are a number of inconsistencies in the statements he made about who he complained to. In his first statement in paragraph 8 he claimed never to have complained about the abuse from Brother James only to relate the four people he in fact complained to in paragraphs 13 and 15. He then told Mr Godsi that he had not complained to his social worker Mr Pearce. I have already alluded to the way in which his allegations came out piecemeal as being illogical and not readily explained by an understandable reluctance not to discuss the allegations due to embarrassment.

65. Many of his allegations I thought were inherently implausible. He alleges that he was abused on camping trips at Driffield and Selby (and I fully accept that it does not matter if the geography is accurate) by both Brother James and Brother X coming into his tent and abusing him in front of either three or five other boys in the tent. Similarly, the allegation against Brother James in his dormitory appears to have taken place with three other boys in the room. This seems to me to be inherently unlikely. One thing I did believe from Brother James was that he would not have abused a boy if there was any chance of it being witnessed and reported. This seemed consistent with his manipulative and calculating behaviour.

66. The Claimant told Mr Godsi that he had been abused by Brother James two hundred times or more. Even when challenged at the hearing he maintained it was twice per week which seemed an extraordinarily high total. He also alleged that Brother X abused him in The Unit at least 20 times. His recollection of him being masturbated until his penis bled by both perpetrators does not seem credible.

67. His general practitioner records were available and were extensive. He has been treated on a number of occasions for mental health difficulties but on no occasion, either before or after his disclosure of abuse in these proceedings has he mentioned the abuse to a health professional other than the experts in these proceedings. This is not determinative, as I recognise there may be a reluctance amongst victims of child sexual abuse to discuss the abuse with their doctor, but it would have added some weight to his case if there was some reference to it in his records.

68. Whilst the demeanour of the witness can often be an unreliable guide the content of what the Claimant said in the witness box was insufficiently detailed to be convincing. He broke down at the end of his evidence when discussing digital penetration which appeared genuine. I was left with the feeling that something unfortunate had happened to the Claimant in the long distant past but his evidence was not such that I felt I could make positive findings of fact in his favour on the balance of probability in relation to the allegations he made of physical and sexual abuse at St William’s. I am not making a finding that he has concocted his allegations, only that he has failed to discharge the burden of proof to the requisite standard. It follows that even if I had permitted the claim to proceed after the expiry of the limitation period I would have dismissed it in any event on the evidence.

69. In the light of the two findings I have made there is no basis on which I can deal with the issues of causation and quantum.

70. I am grateful for the assistance of both Leading and Junior counsel.