CD v The Catholic Child Welfare Society (Diocese of Middlesbrough) & Anor

The Claimant CD was born on 30^th January 1978, he is now 36 years of age. He had a difficult upbringing and social care records show he committed a number of offences before he reached the age of criminal responsibility. On 23^rd June 1989 at the age of 11 ½ he was made the subject of a care order for offences of theft and criminal damage. He was initially placed at St Aiden’s Children’s Home in South Tyneside but on 4^th October 1989 he moved to St William’s School in Market Weighton in the East Riding of Yorkshire where he stayed until 1994. This case is about what happened to him during his stay at that school.

St. William’s School

The Defendants

The group claims

The effect of this case was that the Defendants were able to agree that they would be represented by one firm of solicitors and counsel instructed by them in any subsequent trials and the court need not be concerned with the respective legal responsibilities of the various Defendants. The court and both teams of lawyers then attempted to identify suitable cases which could be tried first in order to give some guidance about the conduct of future trial. This was achieved by agreement and eight cases were chosen as lead cases to be tried in May 2015. Just before they were due to be tried it was discovered that a new police enquiry had taken place and that two of the alleged abusers James Carragher and Anthony McCallen had been charged with a large number of new offences arising from their involvement with St William’s school. Understandably the Defendants applied for the trials involving these witnesses to be adjourned until the prosecution was complete as they were unlikely to give evidence with a criminal prosecution pending. They were eventually tried between October and December 2015 and both found guilty of a number of serious sexual offences against pupils at St William’s. They both received substantial prison sentences. Five of the eight trials had been adjourned pending this prosecution and the individual Claimants in the other three trials discontinued just before they were due to be heard. Arrangements were then made for the remaining five lead cases to be tried of which CD’s case is the second to be heard. Through no fault of his own, therefore, CD’s case has been delayed by many years due to the legal complexities of this litigation.

The Claimant’s case

The Claimant’s social services records show that he had a very troubled childhood with a recording that he suffered from encopresis from at least the age of five until his teens. His parents had separated when he was young and his mother could not cope with him and his brother who both used to truant from school. He was first caught committing offences when he was as young as four years old and there is a record of an arson offence on 21^st November 1987 when he was only 9 years of age. His first conviction before the courts was on 26^th October 1988 (aged 10 ½) and on 23^rd June 1989 he was convicted of theft and criminal damage (setting fire to a school) and made the subject of a care order. The records appear to show that the Claimant had been in voluntary care at St Aidan’s Children’s Home since December 1988 although the Claimant had no real recollection of his time at St Aidan’s.

The Claimant was allocated to St George’s House and soon settled into the regime at St William’s. Whilst he was a pupil at St William’s he alleges that he was physically and sexually assaulted by Brother James Carragher (“Brother James”) and physically assaulted by Mr Noel Hartnett and Mr Ray Black. There was also a rather vague allegation of what we would now term voyeurism against Father McCallen.

He alleges that the first assault against him was committed by Brother James shortly after he arrived at the school. He was swimming in the swimming pool with other pupils when he was heard to swear. Brother James called him to the shallow end, sat the Claimant on his knee and slapped him hard on the face. The Claimant threatened to report Brother James to his social worker and Brother James then threw him out of the swimming pool and he landed on his face causing a mark to appear for a few days. He alleges that Brother James physically assaulted him 20 or 30 times over the year he was Headmaster before he left the school in 1990.

The allegations against Noel Hartnett are of physical abuse only. The Claimant alleges that he was slapped or punched approximately 20 times during the early part of his stay at St William’s for minor misdemeanours. He recalled one particular incident where he was walking to church on a Sunday and Mr Hartnett and his family were walking in front of them. He was heard to swear and Mr Hartnett turned round and punched him in the face, remonstrating with him for swearing in front of his family.

He alleged that Ray Black would shout and slap children but he stopped doing this after Brother James and Noel Hartnett left and the Claimant recalls getting on well with him after his conduct changed.

He alleges that Father McCallen would take the boys into The Unit and encourage them to hit each other with foam bats to get rid of aggression. He also alleges that whilst supervising the swimming pool he would take photographs of the boys in the pool.

In his first statement given in May 2007 the Claimant recalled going on holiday to Scotland with five other boys and Brother James. They stayed in a detached house in an isolated location near a lake for a week. He described one night when one of the other boys was led out of the bedroom to go with Brother James and he was concerned the boy had been abused. In his second statement made on 3^rd February 2014 the Claimant revealed for the first time that the boy who had been led out of the bedroom and into Brother James’ room was in fact him and he had been anally raped by Brother James.

The Claimant did not report this incident to anyone at the time or subsequently. He also did not report the allegations of physical abuse as he said that other staff must have witnessed or been aware of pupils being hit and did nothing about it and so there would be no point reporting it.

The Claimant was at St William’s until 1994 and there are detailed records of his time there. They present a mixed picture with him making good progress and appearing happy in some entries. He clearly had a good relationship with Trish Monkman who was his key worker for a period. There are also records showing that he absconded, was abusive, threatening or violent. He was convicted on two further occasions whilst a pupil at St William’s of Burglary and taking a motor vehicle without consent for which he received a conditional discharge and Attendance Centre order respectively.

When he left St William’s in 1994 he continued to offend and from 1995 to 2000 was regularly before the courts. In total he has 18 convictions for 62 offences with only one offence committed after 2000. He was living with his mother and stepfather at this time and by his own admission was drinking, taking drugs and getting into trouble. His initial employment history was interrupted by a number of short prison sentences. He met his wife Louise when he was about 17 years old and within a few years he started to settle down, particularly after his son Brandon was born on 17^th September 1998. He also has a step-daughter who he has parented. For the last 15 years or so he has been in regular employment and has no issues with drugs alcohol or offending. He is happily married and lives a normal family life.

He claims to have dealt with the memories of abuse by putting them to the back of his mind and ignoring them. He reports occasional flashbacks. He was interviewed by the police whilst he was still a pupil at St William’s as were all other pupils about Brother James and he denied he had been abused. About the same time he received a letter from the solicitor for Brother James asking for a character reference which he ignored. He was interviewed again by the police in 2003 and again denied being abused. This was in part because he did not want to talk about it and in part because he did not want to co-operate with the police given his past history of offending. He first disclosed the physical abuse to his solicitors in 2005 mentioning the incident in Scotland but describing another boy as the victim. He then disclosed that he was the victim of a rape in 2014 repeating this allegation to Professor Maden in 2015 albeit in vague terms.

The Defendants’ case

Mr Hartnett died on 22^nd March 2015 but had provided a full statement dated 26^th February 2015 in which he commented on his time as teacher and Deputy Headmaster at St William’s between 1966 and August 1991. He set out the difficulties faced by staff in managing troubled children with often challenging behaviour. He felt that any force used in either restraint or discipline was reasonable and on the odd occasion it went too far was properly investigated and dealt with. He did recall CD and his brother who was also at the school at the time. He denies having assaulted the Claimant at any time. In particular he denied having assaulted the Claimant outside church pointing out it was ridiculous to suggest he would punch a pupil in the presence of his wife and children.

His widow Elizabeth Hartnett prepared a statement denying that this incident had occurred and that she had never seen her husband punch a pupil. Unfortunately she was unwell and could not give evidence at the trial.

Ray Black gave a statement on 27^th February 2015 describing his employment at St William’s as a registered social worker before he became a nurse elsewhere. He recalled CD and his brother but denied having ever assaulted him. He had enjoyed poor health in recent years and was unable to attend the trial. He is a man of good character.

Christopher Crosby was another social worker who had indicated to the Defendants that he would give a statement. He denied witnessing any assaults and accepted at one time he was the Claimant’s key worker. In the end he declined to sign his statement and the Defendants’ solicitors were unable to persuade him to do so. His evidence was admitted as hearsay with the usual consequences as to weight.

Anthony McCallen gave evidence and denied that he had made the boys hit each other with foam bats and also denied taking photographs of the Claimant and others in the swimming pool

Ms Kari Hansen, the Defendants’ solicitor gave evidence about the various and significant efforts which had been made to locate and disclose relevant documents in the case and, by implication which documents were missing. She was also able to give evidence about what had become of various witnesses in the case and which witnesses, despite her efforts remained untraced.

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.

The assessment of the credibility of a witness

Further well known guidance was given by Robert Goff LJ given in The Ocean Frost [1985] 1 Lloyds Rep 1 at 57:

“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 Claimant’s or the Defendant’s witnesses might choose to lie.

Evidence of recollection

There was some support for this analysis in the expert opinion called by both parties in this case. Professor Maden, a consultant psychiatrist for the Claimant opined as follows at paragraph 153 of his report:

“There are serious problems for the expert arising from the fact that the material events took place over 20 years ago. Memory is not reliable over such long periods of time. Recall is an active mental process in which memories tend to become distorted with time to fit the individual’s beliefs, needs and values. Both the content and meaning of recollections often change with time. Event can and do acquire a significance years later that they did not have at the time. ”

Ms Richardson, an independent psychotherapist called by the Claimant, provided a different explanation for the inconsistencies in recall (paragraph 23 of the Joint Statement) :

“In Mrs Richardson’s opinion, memory for traumatic events is different in nature from other types of memory. In general, although some peripheral details may be eclipsed by the overwhelming nature of trauma, the memory for traumatic events tends to return in its original form and is not altered by the passing of time. She does not agree that the passage of time should be regarded as making Mr Houlsby’s memory of events as unreliable per se.”

The Law on Limitation

The relevant provisions are contained in the Limitation Act 1980 and section 11 determines the length of the limitation period in personal injury claims:

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.

Section 14 of the Limitation Act defines when a Claimant’s date of knowledge is determined. In this case it is not necessary to consider those provisions as the Claimant accepts that his date of knowledge occurred when the assaults took place although the limitation period did not start to run until he had achieved his majority.

In order to avoid the effects of the provisions on limitation the Claimant has to ask the court to exercise its discretion under s 33 of the Limitation Act 1980 to order that the time limit set by section 11 of the Act shall not apply. The section reads as follows:

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.

While these provisions in the Limitation Act are well known their application to cases of deliberate sexual abuse has been the subject of judicial interpretation over the years. In A v Hoare [2008] UKHL 6 the House of Lords provided much needed clarification of a number of issues which signalled a change in approach to the issue of limitation in cases such as the present one. Firstly, the Law Lords decided that its previous decision of Stubbings v Webb [1993] AC498 was wrongly decided. Stubbings v Webb had wrongly determined that the limitation for deliberate sexual abuse was six years (as in assault) rather than three years (as for other personal injury claims). The decision by the House of Lords in A v Hoare that the appropriate limitation period was three years meant also that a Claimant could seek the discretion of the court to disapply the limitation period under s 33 of the Act where previously that remedy had not been available. At the same time the House of Lords also determined in a linked case Young v Catholic Care (Diocese of Leeds) and the Home Office that the test of a Claimant’s date of knowledge under s 14 of the Act was a wholly objective test where hitherto it had been considered to be at least partly subjective. The House of Lords also took the opportunity to give some important guidance as to the exercise of this discretion in historic child abuse cases.

The leading speech was given by Lord Hoffmann. He pointed out that one consequence of their lordship’s decision was that evidence about the Claimant’s psychological state as a consequence of his injury, and whether he could reasonably have been expected to institute proceedings would fall to be considered as part of the s 33 discretion rather than, as previously, as part of the assessment of the date of knowledge under s 14. As he explained in paragraph 49:

“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.”

Lord Brown also dealt with the likely consequences of the change in approach:

“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.”

The change brought about by the decision of the House of Lords in A v Hoare was further considered by the Court of Appeal in B & Others v Nugent Care Society [2009] EWCA Civ 827 when the following warning was given at paragraph 21:

"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.”

A useful summary of the guidance in the above case was provided by Mr Justice Males in NA v Nottinghamshire County Council [2014] EWHC 4005 (QB):

“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.”

The final guidance I intend to refer to is from Lady Justice Smith in Cain v Francis [2008] EWCA Civ 1451 where at paragraphs 73 and 74 she helpfully summarises what the essence of the discretion under section 33 amounts to:

“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.”

Expert evidence on the issue of limitation

The parties’ submissions on the issue of limitation

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.

It was submitted that it was not surprising that the Claimants would respond positively to a letter from a solicitor 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 they had been sought out 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 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.

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.

Specific to the case of CD

There are in fact nine volumes of documents in this case as it is one of the more recent cases to be tried. It was submitted that the Claimant’s failure to report both physical and sexual abuse at the time he was a pupil at St William’s was entirely understandable given the position he was in. Thereafter he did not feel able to report the abuse due to feelings of embarrassment and shame and a wish to repress the painful memories and not to discuss them. The main perpetrator Brother James was able to give evidence as was Father McCallen. Mr Hartnett and Mr Black had given statements and had only become unavailable recently. There was a significant amount of documentation which could be used either to support or undermine the Claimant’s claim. The crucial incident on holiday in Scotland was never likely to be documented but there are documents which show that the Claimant and Brother James were present at the time. It was alleged that the Defendants were aware of allegations against Brother James in 1993 and 2003 and should have done more to investigate the allegations.

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

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

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 wish to put the painful experiences to the back of his mind and repress them. 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 that it 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.

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 actually a clear and compelling witness and I felt he was cogent. Whilst there was little or no confirmation from independent sources about his motivation for not reporting the abuse I felt his assertions on this topic were genuine and I also felt it significant that he had still not told his wife (with whom he is very close) that he had actually been raped.

I accept the fact that he denied being abused twice to the police is problematical on this topic (his cogency) but it is entirely understandable that he did not report the abuse whilst at St William’s and again not too surprising that someone with his criminal record would not report the matter to the police. The delayed disclosure of the fact of the rape could actually be said to be consistent with his evidence that he was reluctant to talk about it and felt deep shame and embarrassment as he expressed in the witness box. The issue will be considered in more detail when I decide whether the abuse in fact took place. I accepted his evidence as genuine however when he explained the reasons why he had not sought to make a claim sooner.

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 allegation about the rape is one which is unlikely to be affected by the passage of time in terms of cogency. The Claimant did not say he could not remember it, merely that he did not like to recall it. From the Defendant’s point of view either Brother James is telling the truth about the incident not occurring or he is not. It is not really something that either of the participants should have forgotten. In any event it would not have been documented and what documentation there is supports the fact that the opportunity was present. The physical abuse allegations are more generic but whatever surrounding documentation may exist is still available. The missing documentation in this case is very limited and of only peripheral relevance.

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

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

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

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

All the circumstances of the case

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."

I have also considered the Defendants’ argument that it would be disproportionate to allow the case to proceed unless the allegation of rape is proved but in my view this would force me to “put the cart before the horse” and determine whether the rape took place or not which would be wrong in principle.

Decision on the exercise of discretion under section 33

Was the Claimant in fact abused as he alleges?

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 deal with this issue in cross-examination due to his sad demise. Whether I accept or reject the allegation may depend in an individual case on how convincing the Claimant is. Although he was supported in his evidence by his widow, she was unable to attend court due to illness and I am not completely satisfied she could not have attended court should she have been determined to do so.

The same cannot be said for Mr Black who was clearly seriously ill with a number of conditions such that it would have been dangerous for him to attend court. I can give very little weight to the evidence of Mr Crosby.

Anthony McCallen was a very unconvincing witness indeed. He still denied any wrongdoing in respect of the allegations where he has been convicted and serving a sentence. In relation to the allegation he pleaded guilty to in 1993 he minimised this to such an extent that it amounted to a denial. He had to concede he had been found to have a huge library of videos of young boys and that he had secretly photographed boys at his home on Holy Island in the toilet and /or shower. It was obvious that he was a convicted paedophile in denial.

My impression of the Claimant was favourable. I felt he gave his evidence in a straightforward way albeit it an emotionally flat manner. His evidence in chief was the only time he has given a full account of the rape. It was dealt with sensitively by Leading Counsel for the Claimant and the gradual manner in which it emerged was compelling. He found himself in some difficulty at one point when he was asked why he had told the police in 2003 that he had not been abused. His first answer was that he was “all over the place” drinking and taking drugs. He was reminded by counsel that by about 2000 he had stopped his drinking, drug taking and offending. He immediately agreed and said it was probably because he didn’t want to talk about it and co-operate with the police. Whilst it was not ideal that his first answer was incorrect the immediate concession of a mistake was consistent with a witness at least trying to give a truthful account.

Deciding a case purely on the impression the witnesses make on the court is often unwise and it is necessary to look at the contemporaneous documents to see if they cast doubt on the veracity of the Claimant’s allegations. I intend to concentrate on the allegation of rape first and then deal with the allegations of physical assault in a more compendious way.

The Defendants point out that there were five other boys on the trip to Scotland and no other boy has given evidence to support the Claimant. I do not recall him being asked why none of the other boys gave evidence but it may be that they did not witness him leaving the room with Brother James. Their absence as witnesses is not sufficient to create an adverse inference in my view.

The Defendants say it is implausible that Brother James would rape the Claimant when there was a risk he could report it to other boys but that must have been true of all the sexual assaults he carried out in private. He could either persuade the boy not to speak of it or threaten him. The evidence of Mr M (who Brother James admits having abused extensively) was that Brother James could be both kind and violent. He makes this clear in his second statement. I was clear from Mr M’s evidence that he was afraid of Brother James and remained so when he saw him later as an adult. I am not sure I can conclude that Brother James’ modus operandi always included extensive grooming before committing an offence.

The fact that the Claimant did not cry out at the time or complain to his roommates is not so surprising given the imbalance in power between him and Brother James and the fact that he was only 12 at the time. The fact that he told no-one about it for some 24 years or so is not so surprising either given the shame and embarrassment often felt by the victims of child sexual abuse and the Claimant’s convincing explanation for this (coupled with the fact that he has still not been able to tell his wife).

It is of course troubling that the Claimant actually denied any abuse occurred to the police in about 1993 and 2003. I have dealt with his reasons which are understandable if not wholly logical. The failure to mention the rape until 2014 does in fact conform to a pattern of behaviour with many victims where disclosure is sequential with the most serious allegations being the most difficult to disclose. The fact that he originally described the abuse as happening to someone else was said to be “diagnostic” by Ms Richardson. She had to accept that it was only diagnostic in hindsight but that for me meant that it was at least explicable psychologically and consistent with an abuse victim.

The social care records describe the Claimant as being “obviously quite upset over recent staff redundancies and criminal charges brought against adults he knew and cared for” [1/D3/184]. He was unable to explain this or recall how he felt at the time but Leading Counsel for the Claimant has reminded me that victims sometimes retain positive views about their abusers for a time.

I accept the Claimant has a criminal record with some for dishonesty but that does not mean he is incapable of telling the truth. He appeared to me to be telling the truth, at least. He wrongly criticised Professor Maden for the length of the interview before he wrote his report. I believe however that this was a misunderstanding based on the fact that he had taken an earlier train home than planned and had to pay an extra fare. He was clearly mistaken about this rather than lying.

In 1993 he received a letter from a solicitor acting for Brother James to ask him for a character reference. Counsel for the Defendant reasonably asked the rhetorical question why Brother James would do that if he had effectively raped the Claimant only three years previously. This would have been a convincing point had Brother James said in evidence that he had specifically recommended that his solicitor write to CD. He was however much more vague about the selection process. It appears that a number of former pupils were written to in the hope of obtaining good references from a list of pupils who were there at the same time as Brother James. There are a number of other possible explanations, including his arrogance and the fact that he had not connected the name with the one-off serious sexual assault which occurred.

The Defendants rely on the absence of any symptoms of distress or anger from the Claimant after the Scottish trip and the fact that he appears to have told his teacher he had a “great time”. The Claimant doubted he had used these actual words but accepted he may if asked have said it was “OK”. He said he would have done so in order not to have to talk about what happened. I have heard expert evidence to the effect that not every victim of abuse immediately reacts in a noticeable way as Professor Maden suggested. As Leading Counsel for the Claimant pointed out, there appears to be no evidence of Brother James’ thirteen victims behaving in a way to lead to an enquiry about their welfare after the assaults took place.

There were a number of other positive references in the records to the Claimant’s time at St William’s but I bear in mind that there were a number of facilities there which he enjoyed. Brother James left in August 1990 and Mr Hartnett the following year. He was then at St William’s until 1994 but reported no abuse after 1991. He regularly refused to go home for weekend leave but this was because of boredom and difficulties at home he said.

I have therefore considered the contemporaneous documents and the various inconsistencies in the Claimant’s evidence. I take the view that they are either explainable due to the passage of time and the Claimant’s wish to suppress the memory and avoid talking about the abuse, or are insufficiently compelling to overcome my impression of the Claimant in the witness box as a witness of truth. I therefore find as a fact that on balance of probability the Claimant was raped by Brother James in Scotland.

The allegations against Father McCallen were two-fold: that he supervised sessions where boys hit each other with foam bats in The Unit; and that he photographed the Claimant and other boys in the pool. If the first allegation occurred then I do not regard it as a breach of the duty of care or an assault as the bats were designed to be incapable of causing injury. I accept on balance of probability that Father McCallen may well have taken pictures of the boys in the pool for less than innocent purposes but it is insufficiently serious a breach of their right to privacy to sound in damages in a claim for trespass to the person and consequent personal injury.

So far as the allegations of physical abuse are concerned I believe I can deal with these compendiously. I take into account that in the late 1980’s violence in normal schools by teachers on pupils was very unusual. I suspect there had been a history of physical chastisement at this school which took some time to extinguish, perhaps only when Mr Leggett became head teacher. It was interesting that the Claimant did not exaggerate the problem in his evidence conceding that he may have been slapped by Mr Hartnett outside church and not punched as he said in his statement. I am prepared to accept that he may have got “a clip round the ear” for swearing when Mr Hartnett’s family were nearby whereas I would not have accepted that he could have been punched to the ground. I may be doing the late Mr Hartnett a disservice here but it is very difficult to assess his evidence from a posthumous statement. I think it likely however that the Claimant has exaggerated the number of occasions when he was slapped by Brother James and Mr Hartnett due to the passage of time and the unreliability of memory for details of this nature. I find as a fact that he was slapped by Mr Hartnett and Brother James several times each without any lasting injury occurring. His evidence against Mr Black was too vague to surmount the burden of proof.

Causation of injury

By the time the joint statement had been prepared Ms Richardson felt that the alleged abuse cannot be ruled out as a contributory factor in the Claimant’s offending (perhaps because by then she had learned that he claimed to have been raped). She agreed with Professor Maden that the prognosis was good but with the qualification that it is possible but not probable that the Claimant could deteriorate in the future should the defences she believes he has erected against his adverse experiences at St William’s break down. Professor Maden does not believe that the Claimant was adversely affected by his experiences at St William’s but I sense from his evidence that is because he does not believe the Claimant was abused.

Whilst I disagree with Professor Maden about whether the Claimant was abused at St William’s I agree with his overall assessment in terms of causation of injury. This Claimant had an extraordinarily difficult early life with his criminal offending starting at the age of four and six offences recorded before his tenth birthday [H2/D5/101]. He suffered from encopresis consistently from the age of 5 until his teenage years. He was first taken to a child psychiatrist aged 5 and a few years later lost a sibling to tragic illness. Social care records in 1988 say he and his brother had “gone haywire” with them assaulting and threatening other children with knives, stealing and causing damage. Their mother was becoming desperate. Professor Maden opined that less than 1% of the male population have a criminal record before the age of 12 and it is clear that this Claimant’s offending was ingrained long before he went to St William’s. He often appeared reluctant to return home when he was at St William’s and there were clearly attachment issues with his mother and absent father. Professor Maden describes him as having a serious socialised conduct disorder before he went to St William’s and I would have to agree with that assessment. About 50% of children with a conduct disorder in childhood go on to develop problems in adult life and the prognostic indications here were not good. In the event his anti-social behaviour was limited to his adolescence and he is described by Professor Maden as “a textbook example of somebody who settled down in his late teens and has pursued a conventional life ever since”. He feels the prognosis is good.

I find therefore that the Claimant recovered from his conduct disorder when he settled down with his wife and had a family and that he is not currently suffering from any abuse related symptoms. I accept he has difficulty expressing in his feelings but that is not uncommon amongst men and would not be surprising in someone who had undergone such an unfortunate and troubled childhood.

No claim for continuing treatment is made because none is required. Whilst a claim for future loss of earnings was intimated, it was not pursued by counsel in her closing submissions. I believe this was a realistic decision as there is no evidence that the Claimant has lost any past earnings as a consequence of the abuse (as oppose to his own offending) and there is no evidence that he is likely to lose any in the future.

Aggravated Damages

This all seems fairly straightforward but in a differently constituted Court of Appeal in Choudhury v Martins [2007] EWCA Civ 1379 Lady Justice Smith appeared to justify a separate award for injury to feelings even if no award for aggravated damages was made.

The Claimant relies on the decision of Mrs Justice Swift in BJM v Eyre and others [2010] EWHC 2856(QB) where she awarded £20,000 in aggravated damages in a particularly egregious case. It should be borne in mind however that the Defendant was not represented and Richardson v Howie was not referred to in her Judgment.

The Claimant also relies on the decision of Mrs Justice Davies in RAR v GGC [2012] EWHC 2338 (QB) where £10,000 was awarded in general damages but again the Defendant was unrepresented and the only authority referred to is BJM v Eyre ( above)

The reasoning behind the decision of the Court of Appeal in Richardson v Howie was to prevent double recovery whilst accepting that compensation for injury to feelings perhaps heightened by the spiteful nature or motive of the attack should be an additional element of general damages. The problem with aggravated damages historically was that they appeared to include an element of a punitive award which is inconsistent with the normal compensatory justification for awards of damages in tort. I therefore propose to award only general damages to the Claimant but incorporate an element to reflect his injury to feelings, humiliation and the way those feelings were heightened by the position of trust with Brother James was for whom the Defendants are vicariously liable.

The Quantum of General Damages

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