GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors

The Claimant GH was born on 5^th February 1970, he is now 46 years of age. He had a difficult upbringing and was born into a poor family, the youngest of five siblings. His father was a mechanic and his mother struggled to cope with such a large family. He started to misbehave at school and from the age of ten would truant and commit minor offences. On 29^th June 1981 at the age of 11 ½ he was made the subject of a care order for an offences of burglary. He was initially placed at Broomlands Assessment Centre and then Elm Tree Farm Community Home but on 28^th March 1985 at age 15 he moved to St William’s School in Market Weighton in the East Riding of Yorkshire where he stayed until a date in June 1986. 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 decision 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 GH’s case is the fourth to be heard. Through no fault of his own, therefore, GH’s case has been delayed by many years due to the legal complexities of this litigation.

The Claimant’s case

The Claimant recalls being placed on a care order at aged 11 by Teesside Juvenile Court because he was missing school and committing offences. His first appearance before the courts was on 23^rd May 1980 when he was given a conditional discharge for theft. On 18^th July 1980 he was given a supervision order for taking a conveyance without authority and on the same date for burglary and theft a two year community service order. He then appeared before the courts again on 29^th October 1980 for burglary and was given an attendance centre order. It is perhaps significant that all of these convictions occurred when he was only ten years old. It is perhaps not then surprising that at his next appearance before the Teesside Juvenile Court on 29^th June 1981 he was placed in care for burglary, criminal damage and theft. The records which remain from his time at Broomlands Assessment Centre do not paint a positive picture with him being described as “sharp and cunning”… “abusive and rude”… “He does not accept authority”…”He is very attention seeking and manipulative and on occasions can be abusive and shows little respect for adults” [ J2/D9/15-22]

The Claimant was allocated to De La Salle 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 assaulted by Noel Hartnett and Gerard Kelly and sexually assaulted by Father Anthony McCallen. He later moved to St George’s House.

The Claimant alleges that he suffered many physical punishments at the hand of Noel Hartnett who by this time was Deputy Principal of the school. He alleges that if he had done anything wrong in class or around the home he would be sent to Mr Hartnett’s office where he would be extremely violent and punch the Claimant around the head and kick his shins. He would also use his knuckles to punch the top of his head and his chest. He described an occasion in paragraphs 11 and 12 of his first statement where he, with other boys stole a tractor to abscond and they were caught by the police having committed criminal offences. On his return he was given a “good hiding” by Mr Hartnett. This continued two or three times per week until he was sent to Kirklevington detention centre in about July 1985.

The Claimant alleges that he was also assaulted by Gerry Kelly who ran the farm at the school. He had done something wrong and Mr Kelly jumped over a desk, landing in front of the Claimant, punching him in the face and body. He was violent to the Claimant on other occasions. On another occasion after he had stolen a tractor Mr Kelly threw a clutch plate at him which narrowly missed him and he then slapped the Claimant about the face. The Claimant reported the matter to Ray Black a House Master who advised the Claimant to report it to Mr Hartnett. The Claimant did this only for Mr Hartnett to hit him for trying to report Mr Kelly.

Sometime after the physical abuse started the Claimant alleges that he was groomed by Father McCallen. This took the form of offering him pocket money for small jobs which needed to be done and speaking to him in a sympathetic way. Whilst he was doing one of these chores arranged by Father McCallen he was persuaded to engage in mutual masturbation which the Claimant alleges then took place once or twice a week for a period of about six months. When the Claimant saw Professor Maden he recalled that in addition he had been forced to indulge in oral sex with Father McCallen. As a result of the abuse the Claimant alleges that he tried to commit criminal offences with a view to getting a custodial sentence elsewhere. He describes absconding, stealing an Audi motor car in Market Weighton and committing a burglary, recovering about £5000 in cash which was then the subject of a spending spree in Sheffield. The boys were arrested in Sheffield but the next day absconded again and were arrested at Butlin’s Holiday Camp in Bridlington. The Claimant was remanded in custody and served 3 months in Detention Centre at Kirklevington.

On release from Kirklevington the Claimant was picked up by Brother James Carragher, the Headmaster, and returned to St William’s. Subsequent to that he was allowed weekend leave and on a Sunday when he was supposed to return he took an overdose of tablets at York Railway Station and woke up in hospital.

In his third statement the Claimant sought to clarify his previous statement as he felt the incidents may have been reported in the wrong order. He confirmed that the physical abuse from Mr Hartnett and Mr Kelly started first and this was followed by the sexual abuse from Father McCallen. The first incident was the theft of the tractor followed by the thrown flywheel from Mr Kelly. The incident at York Railway Station happened after the sexual abuse from Father McCallen had developed and the implication from the statement is that the abuse caused the overdose. After his return from the Detention Centre the sexual abuse stopped and there was little further physical abuse as the Claimant appeared more “worldly wise”. He did not recall any visits from social workers whilst at St William’s.

The Claimant contends that his attitude changed after he left St William’s and he became very anti-authority. He has several convictions for assaulting police officers. He has problems trusting and opening up to people and with anger management and violence. He has turned to cocaine and cannabis in the past to put thoughts of his time in care to the back of his mind but he occasionally has flashbacks. He feels the ongoing litigation prevents him achieving closure as correspondence from his solicitors tends to bring it all back to him. His criminal record shows that he has 33 convictions for 110 offences which include burglary, assaults on police, wounding with intent and threats to kill. He has served a number of prison sentences the longest being 54 months.

He reports that he did not come forward to make complaints about his time in care previously as he was embarrassed and ashamed at what he had let happen to him. In around August 2003 whilst serving a prison sentence he spoke to a probation officer and prison doctor. He told them he had problems in a children’s home but did not give details. They advised him to consult a solicitor which he did in September 2003 when he saw a Mr Taylor at Watson Woodhouse Solicitors. In March 2005 his case was transferred to Jordans Solicitors.

The Claimant has had relationships with a number of different women since leaving St William’s but many have not been long- lasting. He has four children from relationships with previous partners and has a daughter Susie- Louise with his current partner Joanne. He has worked in his own garage business for the past 8-10 years and previously part-owned a café. He prefers to be self-employed. He describes no current difficulties with drink or drugs.

The Defendants’ case

Ray Black gave a statement describing his employment at St William’s as a residential social worker before he became a nurse elsewhere. He recalled the Claimant’s name but little else about him. He had no memory of the Claimant reporting to him an assault by Gerry Kelly. Neither did he recall phoning Noel Hartnett about it. He felt he would have remembered if he had and would have recorded the complaint in the Log Book and spoken to Gerry Kelly about it also. He had enjoyed poor health in recent years and was unable to attend the trial. He is a man of good character.

Anthony McCallen is no longer a priest but did attend court to give evidence for the Defendants. In relation to the claim made by GH he said he had no recollection of him and denied sexually abusing him either over a six month period or at all. To be fair, he denied abusing any of the pupils at St William’s at any time, despite his criminal convictions which he continues to dispute.

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 Claimants’ or the Defendants’ 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 144 of his supplementary report:

“The social services records confirm that the fallibility of memory is a major problem in historical cases of this nature, even when the lapse of time is much less than in some St William’s claims.”

Ms Aitken, a clinical psychologist, called by the Claimant did not address the potential difficulties in recall in her report but did agree in the joint statement as follows:

“We agree that, whatever the reasons for the delay, it has made the task of the experts more difficult because of a deterioration in the cogency of the evidence as a result of the passage of time”

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 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.

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 GH

It was submitted by the Claimant 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 which he partly achieved through alcohol and drug abuse and not to discuss them. The main perpetrator Father McCallen was able to give evidence and there were statements from Mr Hartnett and Mr Black and so there was little evidential prejudice to the Defendants. There was a significant amount of documentation from the Prison Service, St William’s and social services records obtained in more recent years which could be used either to support or undermine the Claimants claim. It was alleged that the Defendants were aware of allegations against Brother James at least 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 in the Claimant’s statements and repeated to at least one of the 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 the 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. The Claimant has clearly asserted why he failed to report the abuse sooner and if this is true it would provide a good reason why he delayed so long in bringing a claim. The Defendants doubt the veracity of the Claimant’s assertion in this respect relying on his unreliability as a historian generally and in particular about the circumstances which caused him to break his silence and disclose the abuse. It is difficult for me to resolve this issue in isolation without going into an assessment of the other aspects of the evidence and making findings of fact. This would be contrary to principle however. What I can say is that the Claimant has provided an explanation for his delay which, if true, may well provide a good reason for delaying bringing the claim and it is difficult now for me to make a finding of fact about what was in the Claimant’s mind in isolation from other issues in the case.

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

In terms of cogency the Claimant had difficulty remembering dates accurately and had to concede that he may not have been correct about the order of events. He asserted however that his evidence was true and accurate about the fact of the abuse and did not personally suggest that his cogency was affected by the passage of time in any important respect. Objectively it is clear he was confused about a number of matters but it was not clear to me, as my subsequent analysis will show, that this confusion was caused by the delay in making the claim. To the extent that his evidence was not cogent, it was not because he was genuinely unable to remember it.

The Defendant’s main witness Father McCallen had no specific recollection of this particular Claimant but as his evidence was that no abuse whatever had occurred, to this pupil or any other, the passage of time did not really affect his recollection. Either he was truthful and reliable in that assertion or he was not. This was not a case where he could be caught out on the detail, forgotten over time, as he asserted that the Claimant’s allegations were completely fictitious. Similarly, Mr Black and Mr Hartnett had no real memory of the Claimant but they were both in a position to deny his accusations on the basis that they can and did say that such allegations were untrue. In both their respects, any reduction in their cogency caused by their inability to actually attend court cannot be blamed on the Claimant.

In this case, whilst there were only two bundles of documents, there were a significant number of relevant documents. There were extensive prison records from the mid 1990’s and the late discovery of the social care records running to 365 pages was vital. It included contemporaneous documentation running from 1980 when the Claimant’s family first came to the attention of social workers running through the period before, during and after his time at St William’s. There were even some documents which had emanated from St William’s and other sources within the file which enabled Professor Maden to produce an extensive supplementary report and provided significant material for cross-examination of the Claimant particularly as to credit. The only documents which were missing and likely to prove useful were the House Log Books. The relatively comprehensive social services file was very useful in filling in some of the gaps which failures in memory might have caused.

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."

A further argument relied on by the Defendant is based on the fact that the court is exercising an equitable discretion when considering cases under section 33 Limitation Act 1980. The court is certainly exercising a discretion but I have not seen it described as an equitable discretion before. The Defendant contends that the Claimant lied in giving evidence in relation to two specific issues. If the court were to find that the Claimant had in fact lied in either of these respects the Defendant submits that it would be wrong in principle to exercise the discretion in his favour as he has not “come to equity with clean hands”.

This is not an argument I have seen in previous authorities but I have to accept that I am enjoined to consider all the circumstances of the case. I feel however that to embark on an analysis whether the Claimant lied in evidence is to embark on a fact finding process which is not normally done until a decision has been taken on whether to exercise the discretion under section 33. I believe that it is important that I do not analyse the evidence and make findings of fact before I have made a decision under section 33. It may be necessary for me to consider the general cogency of the evidence of both parties in a broad brush sense, but only to compare it with how much more cogent the evidence may have been if the case had been brought in time. I will consider further the evidence the Claimant actually gave in support of his claim later in this Judgment.

Decision on the exercise of discretion under section 33

The documentation in this case was both extensive and illuminating. The social care records in particular gave a very good contemporaneous record of the Claimant’s behaviour both before and whilst he was at St William’s. This particularly assisted the Defendant during the trial with material for cross-examination and enabled the experts (particularly Professor Maden) to reach firm views on the causation issue. What little documentation was unavailable had very little if any impact on the fairness of the trial. I have reached the conclusion that a fair trial is possible. The Claimant has provided a good reason why he delayed in issuing proceedings for so long although I accept the Defendants are entitled to have a jaundiced view about that. I do not feel confident enough to make a specific finding of fact about the Claimant’s intentions during the relevant period. Overall, and very much on balance, I have reached the conclusion that it would be equitable to allow the action to proceed. I therefore order that the limitation period be disapplied.

Was the Claimant in fact abused as he alleges?

Similarly I could not form a view about 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 have no evidence at all from Mr Kelly.

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. I think it very likely that he did abuse boys at St William’s and as I understand it in 2015 he was convicted of ten indecent assaults and one count of buggery against different complainants.

The Claimant was not a convincing witness. He rarely engaged with the actual question he was asked. He kept repeating “it is all in the wrong order” without confirming specifically what the right order was. Where there was an inconsistency in his evidence to different people he would blame a “misunderstanding” without explaining who had been guilty of the misunderstanding and in what respect. He had to concede that he must have been wrong about a number of issues, such as how long he was at St William’s for, how long the abuse lasted for, and how often it took place. These mistakes might have been partly understandable given the passage of time but there was no real clarity from the Claimant when contemporaneous documents were put to him. He was asked about the businesses he had run over the last few years. He soon found himself refusing to answer questions on the grounds he might incriminate himself. I drew the inference that he had run a number of successful businesses over the last few years whilst paying no tax, possibly whilst claiming benefits or having the benefit of legal aid. Later in his evidence he used the excuse that names were redacted from records as an excuse not to answer difficult questions about his evidence being contradicted by contemporaneous records. This continued even after I had clearly explained the reasons for the redactions and their limited relevance to the question. There were at least two issues where the Defendants say the Claimant actually lied in the witness box and there were a number of other occasions when he looked decidedly uncomfortable.

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. Although there are some genuinely contemporaneous documents it is necessary to examine what documents there are and look critically at what the Claimant has said to various people over time.

The Defendants would of course suggest that the Claimant is an unreliable witness and rely on the Claimant’s extensive criminal record, including many offences of dishonesty. I however accept that a person with a record of dishonesty can still give truthful evidence. There is another reason why the Defendants say that the Claimant is likely to be an unreliable witness in addition to his convictions for dishonesty. Professor Maden and Ms Aitken both agree that the Claimant suffers from a severe dissocial personality disorder which is common amongst prisoners and other offenders. He scored at the highest level on a scale for psychopathy.

One way to test the reliability of an account is to test its internal consistency with other accounts given at different times. In three significant respects there is evidence of inconsistency which is difficult to understand and was not adequately explained by the Claimant when it was put to him. The first issue is the frequency of and duration of the sexual abuse. In his first witness statement and to Ms Aitken the Claimant said it happened once or twice per week for six months. In his third witness statement he conceded that it stopped after he was remanded in custody in June 1985 which meant it must have been in his first nine weeks after arrival. He originally had said the first act of grooming was after four or five months after his arrival. In cross-examination he had to concede that the sexual abuse happened after the physical abuse and it probably occurred five or six times in total. Even allowing for some understandable uncertainty about dates, this is quite a significant sea change in his evidence.

The first time the Claimant made an allegation that he had been forced to have oral sex with Father McCallen was when he saw Professor Maden on 13^th September 2014. This allegation had not been mentioned in the letter of claim, the Individual Statement of Particulars or in any of the Claimant’s three witness statements. He did not mention it to Ms Aitken either it seems. Whilst I understand that victims of abuse often give gradual or sequential disclosure it seems odd that the Claimant would suddenly reveal this to the Defendants’ expert witness only six days after he made his last witness statement (which according to its terms was intended “to clear up some ambiguities”). In cross-examination he suggested that Dr Aitken had misinterpreted his account but it seems unlikely to me that she would miss such a significant disclosure.

The Claimant has consistently alleged that Gerry Kelly threw a clutch plate or a flywheel at him but his evidence about the consequences have changed over time. In his witness statement he said it narrowly missed him (paragraph 18). When he saw Ms Aitken he said it injured his eyes [J1/C/5]. When he saw Professor Maden it caused a large gash [J1/C/41] and in cross-examination at the trial he said it skimmed past the back of his head and caused a graze according to my note. These discrepancies were put to him in evidence and he maintained he had always said there was a graze, but that is clearly not what others have recorded.

Another way to test the veracity of a witness is to compare what they have said with contemporaneous records made by people who, at the time, had no reason to think that litigation would be contemplated. An example of this is the Claimant’s description of an occasion when he took an overdose at York Railway Station. His witness statement (paragraph 21) reads as follows:

“I was then allowed weekend home leave and as a result of not wishing to return to St William’s, on the Sunday when I was supposed to return I took an overdose of tablets at York Railway station. The mini bus from the home came to pick us up and I cannot remember anything after that until I woke up in hospital”

The clear implication of this assertion was that this was an intentional overdose to avoid having to return to St William’s because of the abuse he was suffering. He repeated a similar account both to Ms Aitken and Professor Maden alleging that he had taken the overdose intentionally as he did not want to go back to St William’s after a period of home leave. The recently disclosed social services records however paint a completely different picture. Brother James wrote a contemporaneous report [J2/D8/77] which revealed that another boy had intentionally taken some of his mother’s supply of Valium and planned to share it with others for recreational drug use. GH was one of three or four boys who took the Valium swallowing 3-5 tablets with a can of coke. The boys appeared groggy and one of the boys (not GH) was taken to York District Hospital to have his stomach pumped. The Claimant was put to bed at St William’s to sleep off the effect of the Valium which he did. The report by Brother James was measured, responsible and clearly accurate. The Claimant conceded in cross-examination that he may not have gone to hospital but maintained that he did not take the Valium for recreational drug use. He did not deal with the suggestion that he only took 3-5 tablets as Brother James recorded he confessed to. He complained that he was unable to answer questions about the report as there were “too many blanks”. The blanks were merely where the names of the other boys had been redacted to preserve their privacy. I find as a fact that this was an accidental overdose of Valium taken with other boys as recreational drug use.

The records also cast doubt on the timescale of events as reported by the Claimant. In his first witness statement he relates how he stole a tractor and was then physically abused by Noel Hartnett a couple of days later. In his third statement he states “the abuse started with me stealing the tractor. This led to the physical abuse by Kelly… and the beatings from Hartnett for having stolen the tractor. Shortly after that period of time the abuse by McCallen started”. The records show that the Claimant stole a tractor on 6^th June 1985 but returned to St William’s. He then stole a tractor again on 11^th June 1985 when he and four or five others went on a crime spree and were arrested shortly afterwards on 15^th June and remanded and sentenced only returning to St William’s on 16^th August 1985. The alleged overdose at York Station happened on 4^th June 1985. This seems to suggest the physical abuse started shortly after 6^th June 1985 but must have ended by 11^th June 1985 when the Claimant absconded and was arrested. The sexual abuse is alleged to have started after the physical abuse but the overdose incident was on 4^th June 1985 which, according to the Claimant was a reaction to the sexual abuse. The Claimant can be forgiven for forgetting some of the dates or getting the order of events wrong but it is clear that there was a very narrow window of opportunity between what was supposed to be the first event and the absconding and subsequent arrest and sentence which marked the end of the abuse.

The Claimant suggested that he never saw his social worker while at St William’s but the social work records reveal that there were regular visits to review the Claimant’s progress. The social work records were used by counsel for the Defendants to show that the Claimant had positive experiences at St William’s and after his Detention Centre sentence in July 1985 there was a marked improvement in his behaviour. It also showed that he was allowed to leave St William’s long before his seventeenth birthday on home leave due to his good behaviour ( contrary to his assertion that he had been “ on the run” on his seventeenth birthday when the school said they didn’t want him back) . When these records were put to the Claimant he repeated his assertion that there were “too many blanks” as an excuse not to deal with damaging evidence which contained innocent redactions removing children’s names for privacy purposes.

The Defendants submit that the Claimant lied on oath in two respects. Firstly, when asked about the absence of any tax records for his current business he said there had been no need to inform anyone because his business had been in operation for less than a year. This was clearly not true as in paragraph one of his second statement [J1/B/11] he said he had worked in his own garage business for the past 8 or 10 years. Following this response was a period of the trial when the Claimant refused to answer questions to avoid self–incrimination. I draw the inference that he did this because he has in fact been working in his own business for many years without declaring his income for tax purposes. I recall him also mentioning receipt of benefits at one point and if he has legal aid, I doubt his true income has been revealed. I find as a fact that he lied to the court in this respect.

The second lie according to the Defendants is that the Claimant lied when asked whether he recalled Paul Brown who was a pupil at St William’s at the same time. The suggestion was being put that Paul Brown was also at HMP Holme House with the Claimant in 2003 and was one of six inmates who all instructed the same solicitors to make a claim arising from alleged sexual abuse at St William’s. The Claimant denied knowing Paul Brown. It became clear from the social work records however that Paul Brown was one of the boys who the Claimant had absconded with on 11^th June 1985 and gone on a crime spree which ended with them being arrested in Skegness. They were both in the care of the same local authority and the police wanted to interview them about other offences [J2/D9/97]. I accept of course that the Claimant knew Paul Brown in 1985 and it seems they were in the same prison in 2003 although I cannot say if they were on the same wing. All I can say is that when the Claimant was asked about this issue he quickly denied knowing Paul Brown whilst looking visibly uncomfortable at the same time. There are few occasions in court when a witness looks to be untruthful whilst giving evidence but this was one of them. Whilst it is not inevitable that the Claimant must have remembered Paul Brown his demeanour in the witness box persuades me that he did and I find as a fact that he was untruthful in this respect.

The burden of proof is on the Claimant to satisfy me on balance of probability that he suffered the sexual and physical abuse which he contends occurred in this case. He has failed to discharge that burden. I found him an unreliable witness for the reasons alluded to above. There were too many unexplained inconsistencies in his evidence and his performance in the witness box did nothing to allay my concerns. Whilst I accept that Father McCallen may have sexually abused boys at St William’s that he has not been called to account for in the criminal courts I am not convinced on balance that this Claimant is one of them. The allegations of physical abuse are easy to make and difficult to defend but my concerns about his allegations of sexual abuse infect his credibility on the allegations of physical abuse. I intend to dismiss the claim. In the light of my findings of fact I do not intend to deal with the issues of causation and quantum.

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