Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus)

The Sons of the Sacred Heart of Jesus is a religious Order of the Roman Catholic Church. It is also referred to as ‘the Verona Fathers’ and, since the canonisation of its founder, Daniel Comboni in 2003, as the ‘Combonis’. I shall refer to it as ‘the Order’. It is a missionary Order. In the 1960s and 1970s the Order ran St Peter Claver College and Junior Seminary in Roe Head, Mirfield, Yorkshire (‘Mirfield’). A seminary is a secondary school testing a possible vocation to the Catholic priesthood or brotherhood (i.e. a group of non-ordained members of a religious Order). Mirfield was a boarding school which usually took boys after they had passed their 11 + exam. It was a relatively small school with about 80-90 pupils in total. It did not have a 6^th form and so boys who wished to take GCE ‘A’ levels had to go elsewhere. One possibility was a college, also run by the Order, at Sunningdale in Berkshire (‘Sunningdale’).

The Claimant was born on 27^th April 1958. He was a pupil at Mirfield from September 1970 – July 1975. On passing his 11 + he had begun his secondary education at St Francis Xavier. He was 12 when he started at Mirfield and he repeated his first year.

In February 1973 Michael Riddle (‘Riddle’) joined Mirfield. Riddle was in his 60s. He was retired, but taught English and Geography at Mirfield on a voluntary basis. Riddle was married and had a daughter, but he had a room at Mirfield and stayed there during the week.

The Claimant alleges that he was sexually abused by Riddle from shortly after the latter’s arrival at Mirfield until Riddle’s departure in about August 1974, a period of about 18 months. The abuse took the form of Riddle massaging the Claimant’s genitals, putting the Claimant’s hand on or near his own genitals and rubbing the Claimant’s anus and, on occasions, digitally penetrating the Claimant’s anus. On some occasions Riddle attempted to kiss the Claimant forcibly on the lips. The Claimant alleges that the abuse was preceded by a process of grooming. For a period after Riddle left Mirfield, he corresponded with the Claimant and used inappropriately affectionate language. The Claimant was about 14 years and 10 months old when the abuse started and 16 when Riddle left.

Following his departure from Mirfield, Riddle went to live in Ireland. On 22^nd October 1999 a Michael Riddle died aged 93 in Kenmare, Ireland. The Defendant’s understanding that this was the same Riddle has not been challenged by the Claimant.

The Order is divided into geographical Provinces, each headed by a Provincial Superior. The Defendant, Martin Devenish, is the Provincial Superior of the London Province of the Order. He is ‘Father’ Martin Devenish because he is an ordained member of the Order. A member of the Order who is not ordained has the title ‘Brother’.

Father Devenish is sued in a representative capacity because the Order was vicariously responsible for what are said to be Riddle’s assaults. The claim is defended and the assaults are not admitted. However, the Defendant accepts that, if the assaults took place and if the claim can otherwise be maintained, the Order would be vicariously responsible. As it happens, Father Devenish was also at Mirfield and in the same year as the Claimant.

The Claimant left Mirfield, as I have said in July 1975. He was still keen to become a priest and to undertake missionary work. In September 1975 he moved to Sunningdale where he took A levels in 1977. In that year he transferred to another institution run by the Verona Fathers – their postulancy in Dawson Place, Bayswater (‘Dawson Place’). A postulancy involves a period of admission to a religious order on a probationary basis. He remained at Dawson Place until 1979.

The Superior of Dawson Place was Father Glenday. In about January 1979 Father Glenday told the Claimant that, at the end of that academic year, he was not going to be able to graduate into the novitiate. A person undertaking a novitiate is known as a ‘novice’ and the novitiate is a 2 year period of reflection before a person takes his first vows on becoming a member of a religious order. The Claimant was very disappointed at this news.

He moved to British Columbia in Canada and spent the period 1979-1981 there as a lay missionary on a Native American reserve.

In 1981 he again applied to join the novitiate of the Order, but this time in its North American Province. It seems that Father Glenday wrote to the North American Province and advised that the Claimant should not be made a novice. His application was not successful.

After this, the Claimant travelled to the USA, Japan and New Zealand from 1981-82.

He still hoped to become a missionary. On 18^th March 1982 he wrote to Father John Troy who by then had become the Provincial Superior at Dawson Place. Father Troy agreed to admit the Claimant and he returned to Dawson Place in November 1982. He was sent to live in a house of the Verona Fathers in Rickmansworth. As it happened the Director of Postulants at Rickmansworth was Father Pelucchi who had a later involvement in dealing with the Claimant.

In 1983 the Claimant went to Italy to start his novitiate. He was due to complete this and take his vows in about June 1985. Just before he did, he was told that he was not suited to the religious priesthood and he should instead pursue his vocation with the secular priesthood. That would mean him being attached to a diocese. He would be unable to undertake missionary work in Africa which had been his ambition.

He did though get accepted to study for the secular priesthood and in September 1985 he went to study at Beda College in Rome, but in June 1986 he was told that he did not have a vocation for the secular priesthood either.

Instead the Claimant trained as a nurse and qualified as a Registered General Nurse (RGN) in 1991 and became a Registered Sick Children’s Nurse (RSCN) in 1993. He volunteered for nursing assignments in India, Kenya, Uganda, Egypt and Tunisia. He taught in Liverpool and Saudi Arabia.

The Claimant disclosed that he had been abused to a friend and pastoral counsellor called Edward Smink. In his Reply (see below) he said this was in 1998 or 1999. He also blurted out to his mother and niece that he had been ‘molested at Mirfield’. In the original Reply he said that this occurred in 2005. In his amended witness statement and in the Amended Reply he said that it took place in the late 1990s. He says that his mother did not want to discuss the subject. His case, to which I shall need to return, is that he did not wish to take any further action in relation to the matter while his mother was alive. She died on 26^th April 2011.

On 3^rd February 2011 the Claimant wrote to Father Enrique Sanchez, who was then the General Superior, or head, of the Order. He asked to meet with Father Sanchez ‘to discuss things that had happened as a boy in the Comboni school, Mirfield.’ On 24^th February 2011 Father Sanchez replied that he was likely to be busy but suggested that the Claimant meet with Father Alberto Pelucchi (who was his Vicar General or Deputy).

In June 2011 the Claimant went to Rome and met with Father Pelucchi (first seeing Brother Daniel Giusti). He said to Father Pelucchi that he had been sexually abused by Riddle. In notes which Father Pelucchi made at the time, Father Pelucchi wrote that the Claimant dated the abuse by Riddle as 1974/5. He also alleged that he had been struck by Father Clark, another member of staff at Mirfield, and that Father Hicks, who had been the Rector, or head teacher, at Mirfield during some of the Claimant’s time there, had inflicted psychological abuse. He also said that one of the Claimant’s fellow pupils, John McGovern, could provide relevant information as to Father Hicks’ knowledge of what had been happening.

Some months later Father Pelucchi visited the UK. He met with Father Hicks and Father Clark who both denied the Claimant’s allegations. He also met Mr McGovern who denied the conversation which the Claimant had attributed to him. Father Pelucchi was not able to trace Riddle for whom the Order had no address. Father Pelucchi wrote to the Claimant on 29^th November 2011 reporting on his investigation and saying that, in the circumstances, the Order could not meet the Claimant’s request for compensation.

On 22^nd March 2013 AO Advocates (the Claimant’s then solicitors) wrote a letter of claim to CCIA Services Ltd, who were then solicitors for the Defendants. I say ‘Defendants’ in the plural because AO Advocates indicated an intention to sue Father Hicks and Father Clark as well as a representative of the Order. The letter asked for a response within 4 days (by 26^th March 2013).

The Claim Form in this matter was issued on 27^th March 2013. The 1^st Defendant was Father Hicks, the 2^nd Defendant was Father Clark. Before the Claim Form was served, it was amended pursuant to CPR r.17.1(1) and r.19.4(1) to name Father Devenish as representative of the order as the 3^rd Defendant. No Particulars of Claim were included at this stage.

On 9^th July 2013 Master Yoxall extended the time for the service of Particulars of Claim and the medical evidence in support to 13^th December 2013 and the original Particulars of Claim were served on that date together with a report from Dr Kate Hellin, a Consultant Clinical Psychologist and Psychotherapist, dated 30^th November 2013.

I note the following from the Particulars of Claim:

By February 2014 Hill Dickinson had taken over as the Defendants’ solicitors. They served a defence on behalf of what were still then three defendants on 6^th February 2014. So far as the Claimant’s claims regarding Riddle were concerned, I note:

On 13^th March 2014 the Claimant served a Reply. He argued that the Court should exercise its power to disapply the limitation period if it would otherwise bar his action. I shall return to this matter later, but in brief he pleaded that ‘he felt unable to take any action in relation to the abuse until after his mother had died in 2011’ and following which he had travelled to Rome and met with Father Pelucchi. He pleaded that it was only after receiving Father Pelucchi’s reply in November 2011 that the Claimant had felt he had no alternative to taking legal proceedings.

On 2^nd June 2014 Master Yoxall held a Case Management Conference. His directions included permission to the Claimant to rely on the report of Dr Hellin (and the Defendant was permitted to rely on the evidence of a consultant psychiatrist, Professor Maden).

On 3^rd October 2014 the Claimant served his list of documents which was supplemented shortly afterwards on 30^th October 2014.

In May 2014 the Claimant published his autobiography called ‘Swimming with Medusa’. A copy of this was included in his Supplementary List. The back cover of the book said,

In May 2013 the Claimant had previously provided his diaries for 1969, 1973, 1974 and 1975. On 6^th October 2014 the Defendants’ solicitors pointed out that these had been omitted from the Claimant’s list of documents and asked for disclosure of the diaries for the years 1970-1972 onwards together with the thousands of letters and other works the Claimant had referred to on the back cover of his book. In response the Supplementary list said that the documents no longer in his control included,

Exchange of witness statements was finally due to take place on 15^th January 2015. On that date AO Advocates served an unsigned copy of the Claimant’s witness statement and a statement from Father X dated 15^th January 2015. I have anonymised his name since he has also alleged that he was the victim of sexual abuse and he is entitled to anonymity in any report of these proceedings (see Sexual Offences (Amendment) Act 1992), and, unlike the Claimant, Father X has not waived this right. Hill Dickinson served on the Defendants’ behalf statements from Father Devenish, Brother Daniele Giusti, and from Father Hicks all dated 12^th December 2014, a statement from John McGovern dated 14^th December 2014, a statement from Father Pelucchi dated 15^th December 2014, and a statement from Father Clark dated 24^th December 2014.

The Defendants took issue with the fact that the Claimant’s statement had not been signed and dated, as required by CPR r.32.4(1) and 32PD 17.2(5). On 21^st January 2015 the Claimant signed and served a copy of his original witness statement and issued an application notice for relief from sanctions. He later also sought permission to rely on a further witness statement, from Christopher Speight dated 4^th March 2015.

It will be recalled that Master Yoxall had given the Defendants permission to rely on a report from Professor Maden. Professor Maden interviewed the Claimant on 13^th March 2015. In his report of 28^th May 2015 he recorded that the Claimant had told him that he had been to see a ‘Professor Piero/Pierrot’ prior to seeing Dr Hellin. Hill Dickinson had been previously unaware that the Claimant had consulted anybody prior to Dr Hellin. It transpired in due course that AO Advocates had commissioned a report from Dr Jonathan Shapero, a Consultant Forensic Psychiatrist who had provided a draft report dated 12^th June 2013.

On 28^th May 2015 AO Advocates served a report dated 12^th May 2015 from another psychiatrist, Dr Roger Kennedy, and told the Defendants’ solicitors that they intended to apply for permission to rely on his evidence. Dr Kennedy is a Consultant Child and Adolescent Psychiatrist and an Adult Psychotherapist and Psychoanalyst. Such an application notice was issued on 22^nd June 2015.

On 22^nd June 2015 the Claimant signed and served an amended version of his statement. On the same date he also served what is described as a Supplementary Witness Statement and which was also dated 22^nd June 2015.

On 6^th July 2015 the Claimant issued a notice of discontinuance against Father Hicks and Father Clark.

On 22^nd July 2015 the Defendant issued an application notice to strike out the claim against him. The application was supported by a witness statement of Ian Carroll, of Hill Dickinson, dated 22^nd July 2015. I will return to this in due course. In brief, he alleged that the Claimant’s destruction of disclosable documents after the commencement of proceedings was an abuse of the process of the court.

On 28^th July 2015 the Claimant made a third witness statement. This one responded to the Defendants’ strike out application.

Various matters were considered by William Davis J. on 29^th July 2015 (His judgment M v Hicks and others is [2015] EWHC 2532 (QB)). Amongst other directions he:

Amended Particulars of Claim were served on 17^th August 2015.

The Claimant appealed against William Davis J’s refusal to allow him to rely on the evidence of Dr Kennedy and on his supplementary statement. Permission to appeal was granted by Christopher Clarke LJ on 20^th August 2015. As a result, the trial, which had been listed to start on 16^th November 2015, was vacated and a stay was granted until the appeal could be heard.

The appeal was heard on 18^th May 2017 by Gross and Underhill LJJ (Murray v Devenish [2017] EWCA Civ 1016.) The appeal against the decision regarding Dr Kennedy was dismissed. However, in view of the fact that the trial had gone off, the Claimant was given permission to rely on Dr Kennedy’s report in substitution for the report of Dr Hellin. He was required to serve the report from Dr Shapero. He was also given permission to amend the Particulars of Claim to reflect the substitution of Dr Kennedy for Dr Hellin. Provision was made for Professor Maden to serve a supplementary report as well as other directions. The appeal regarding the Claimant’s supplementary witness statement was allowed.

What were in effect Re-Amended Particulars of Claim were dated 7^th June 2017. This did reflect the abandonment of the claims against all defendants for the alleged assault by Father Clark and the alleged psychological abuse by Father Hicks. It made other changes as well. These included a change to the date when the abuse by Riddle was said to have commenced, from 1972 to 1973. With the support of Dr Kennedy’s report, the Claimant also pleaded that he had suffered post-traumatic stress disorder (‘PTSD’) as a result of Riddle’s abuse.

The Court of Appeal had also required the Claimant to serve a copy of Dr Kennedy’s report. The Claimant’s solicitors did so. It was also dated 12^th May 2015. However, it was not identical to the version of that report which had been before the Court of Appeal. The Defendant (apart from his other objections to the Claimant’s use of Dr Kennedy) had also commented that in certain passages of his report, Dr Kennedy had exhibited an inappropriately partisan approach. What was served was Dr Kennedy’s report with those passages removed. Rather confusingly, the amended version of Dr Kennedy’s report was not re-signed or re-dated. The original version of his report was put to Dr Kennedy in the course of his cross-examination and was Exhibit 3 in the case. Where I need to refer to the original version I shall call it ‘Exhibit 3’. Otherwise references to his 12^th May 2015 report are to the amended version.

On 18^th August 2017 the Defendant served a supplementary report by Professor Maden.

On 6^th November 2017 the Claimant changed his solicitors to Cunningham Blake who currently act for him.

On 17^th November the Defendant changed his solicitors to Keoghs who currently act for him.

A Joint Report from Dr Kennedy and Professor Maden setting out the matters on which they agreed and on which they disagreed was dated 19^th December 2017.

The Claimant served an updated Schedule of Loss on 19^th January 2018 and the Defendant served a Counter-Schedule on 22^nd February 2018.

On 18^th May 2018 the Claimant’s solicitors served a further report from Dr Kennedy (dated 7^th May 2018). Unusually, the report was heavily redacted, but by a consent order of 25^th May 2018 it was agreed that the Claimant could rely on the supplementary report in this form. In the course of the cross-examination of Professor Maden the unredacted version of Dr Kennedy’s supplementary report was put to Professor Maden without objection from the Defendant. This became Exhibit 4 in the case.

On 25th May 2018 the Claimant provided a further supplementary list of documents. This disclosed a further letter from Riddle to the Claimant dated 31^st August 1974 which was marked on the envelope – ‘found w/e of 7/8 March 2015’. The list also disclosed a further diary of the Claimant’s - this one for 1977.

The trial commenced on 11^th June 2018. The Defendant’s strike out application had been adjourned to me as the trial judge. The Claimant invited me to deal with that matter first. Having heard submissions from the parties, I decided that it was not convenient or possible to separate out the issues involved in the strike out from others which would be involved in the case (and, in particular, whether the limitation period should be disapplied).

In the course of her opening, Ms O’Rourke QC for the Claimant made two further changes to the pleadings:

The Claimant gave evidence in support of his claim. He also called Father X and Christopher Speight to give evidence on his behalf. Mr Speight also waived his right to anonymity

Father Devenish was called to give evidence on behalf of the Defendant, as were Brother Giusti and Father Pelucchi.

The Defendant had also served witness statements from Father Hicks, Father Clark and John McGovern. The Claimant issued witness summonses for Fathers Hicks and Clark. In the event, neither party called these witnesses or Mr McGovern. In those circumstances the parties agreed that I should disregard their witness statements and I have done so.

I heard expert psychiatric evidence from Dr Roger Kennedy called on behalf of the Claimant and Professor Anthony Maden called on the Defendant’s behalf.

I take this issue first. While it may be thought that, logically, the application to strike out should be dealt with first, it would be arid to devote time to that question: either the strike out application (if successful) or a refusal to disapply the limitation period would bring the claim to an end. While, of course, it is for the Defendant to establish that the claim should be struck out, it is for the Claimant to show that the primary limitation period should be disapplied.

The Claimant’s cause of action against the Defendant is their vicarious responsibility for Riddle’s alleged assaults. An assault is formally classified as trespass to the person and is a tort. The assaults are said to have occurred in 1973 and 1974. At those times the relevant statute of limitation was the Limitation Act 1939. By s.2(1)(a) of that Act the period of limitation was 6 years from the date on which the cause of action accrued. However, at the time of the alleged assaults the Claimant was between 14 and 16 and by s.22 of the 1939 Act, time did not begin to run until he became an adult. Long before these limitation periods expired, Parliament passed the Limitation Act 1975.

The 1975 Act added a series of sections to the Limitation Act 1939. Materially to the present claim these included what became ss.2A and 2D of the Limitation Act 1939.

Section 2A provided:

What became s.2D of the Limitation Act 1939 said as follows:

By section 3 of the 1975 Act its provisions applied in relation to causes of action which had accrued before, as well as after the commencement of the Act (which was 1^st August 1975). Accordingly, it applied to the Claimant’s causes of action which had accrued in 1973 and 1974.

The statutory law on limitation has now been consolidated in the Limitation Act 1980. The primary limitation period for personal injuries is now contained in s.11 of the 1980 Act. The power to disapply the primary limitation period is now in s.33 of the 1980 Act. There is no material difference as between these provisions and the quotations which I have given for the 1939 Act as amended by the 1975 Act. As a result, the authorities on the 1980 Act are useful and, indeed, binding. But the transitional provisions of the 1980 Act (and, in particular Schedule 2 paragraph 8) provide that nothing in the 1980 Act enables any action to be brought which was barred by the Limitation Act 1939 before 1^st August 1980. The primary limitation period set by s.2A expired in April 1979. The Limitation Act 1939 was itself repealed by the 1980 Act – see s.40(3) and Schedule 4, but the general savings provisions in the Interpretation Act 1978 s.16 would allow me still to exercise the power in the Limitation Act 1939 s.2D. Thus my task is, strictly speaking, to consider whether to exercise that power and I shall continue to refer to its terms.

Section 2A only applied to claims for personal injuries. But even in such cases, it only applied if the claim was an ‘action for damage for negligence, nuisance or breach of duty’. The conventional view was that this phrase did not include claims for deliberate assaults or trespass to the person. That view was confirmed by the House of Lords in Stubbings v Webb [1993] AC 498. However, Stubbings v Webb was overruled by the House of Lords in 2008 in A v Hoare [2008] 1 AC 844.

I have said that the Defendant, Father Martin Devenish, is sued in a representative capacity on behalf of the Order which, it is accepted, was vicariously liable for the acts of Riddle. That is a realistic concession in view of the current approach to vicarious liability in cases such as Lister v Hesley Hall Ltd. [2002] 1 AC 215, but that case is widely acknowledged to have represented a change in the approach of the courts to vicarious liability. Prior to Lister it would have been thought that an employee (such as Riddle here) who deliberately assaulted a person in his charge (such as the Claimant here) was acting contrary to the way his employer would have wished and in consequence the employer would not have been vicariously responsible.

The Defendant acknowledges that I must apply the law as the House of Lords has declared it to be in Lister and Hoare. Mr Fewtrell (who made submissions on the authorities on behalf of the Defendant) submits that I should reject the Claimant’s argument that the earlier views were a good reason why the claim could not have been brought earlier than 2008. Mr Fewtrell argues that the House of Lords in each case followed the conventional course of declaring what the common law was and always had been. The law was applied retrospectively as well as prospectively. Indeed, it was for that reason that Mr Lister and the claimants in the A v Hoare group of cases were themselves able to take advantages of the newly declared principles. The Claimant could instead have been the pioneering litigant.

But while Mr Fewtrell argued the Claimant could not rely on these changes to justify his delay, he submitted the Defendant could to demonstrate additional prejudice from the delay. Thus, he submitted, part of the prejudice to which the Defendant was exposed by the Claimant’s delay was that he could not resist vicarious responsibility on the pre-Lister view of an employer’s responsibility and was exposed to the possibility of the primary limitation period being disapplied which would not have been the case before A v Hoare.

The idea that the common law (or the courts’ interpretation of legislation) is a constant and the (higher) courts do not change it may be something of a fiction, but it has important consequences. As Mr Fewtrell rightly said, it is the reason why the Claimant can invoke those principles now in relation to matters which occurred decades before the decisions in question. Lord Hoffman made the same point in Deutsche Morgan Grenfell Group plc v IRC [2007] 1 AC 558 at [23].

However, the ‘heads I win, tails you lose’ approach advocated by Mr Fewtrell is unattractive. It can also lead to litigation being diverted into barren arguments as to just how novel a judicial decision has been. On both grounds I would need persuading that I am obliged to adopt Mr Fewtrell’s approach. In my view none of the authorities he cited supported it.

A v Hoare also addressed the issue of determining the date of knowledge (now the Limitation Act 1980 s.14 but which is in materially the same terms in the legislation with which I am immediately concerned, namely Limitation Act 1939 s.2A(6)-(8)). I need not spend long on this because it was common ground that, for the purpose of these provisions, the Claimant was to be treated as having had sufficient knowledge when the assaults occurred. Since he was then 14-16, time did not begin to run until his 18^th birthday which was on 27^th April 1976. Consequently, it was common ground between the parties that the primary limitation period (i.e. that which would apply unless the discretion in s.2D of the 1975 Act was exercised in his favour) would have expired on 27^th April 1979.

The principles to be applied when considering the court’s powers under Limitation Act 1980 s.33 have been reviewed most conveniently in Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ at [42]. Both parties urged me to apply those principles and I do.

From the other authorities which were cited to me, I venture to add the following:

It will be convenient to map in outline the competing submissions before turning to consider some of them in greater detail.

Ms O’Rourke submitted:

For the Defendant, Mr Norris QC argues in outline:

I use this heading as convenient shorthand. I note that Professor Maden preferred the terms ‘seduction’ and ‘manipulation’, but the phenomenon being described is much the same.

Ms O’Rourke drew attention to the following entries in the Claimant’s diaries:

Father X was also a student at Mirfield. He was in the year below the Claimant. He gave evidence that, when he was 14 years, old he was taught English by Riddle. Riddle offered to give him extra lessons in his room. Father X said he accepted and sat at Riddle’s desk. Riddle was lying on the bed next to him. He then proposed that Father X should lie on the bed next to him. These sessions took place in the evenings after about 9.15pm. Riddle was dressed in his pyjamas. Father X said he was always fully clothed. On one occasion Father X recalled that Riddle kissed him on the lips. He had found that repulsive.

On the last occasion that Father X visited Riddle’s room, they were both lying on the bed. Riddle undid the zip of Father X’s trousers and touched his penis. Father X made his excuses and left Riddle’s room.

Father X said he was aware of other boys who went to Riddle’s room for extra tutorials. They included the Claimant whose sessions with Riddle also took place at night. The Claimant had been dressed in his pyjamas. He recalled one occasion when the Claimant had returned to the dormitory that they shared. It was late at night.

Father X said that he had initially been flattered by Riddle’s attention, but he was then ashamed and embarrassed by what had taken place. He did not tell anyone about what had happened to him.

Christopher Speight had also been a student at Mirfield. He also had been in the year below the Claimant. Riddle had offered him extra tuition. This also had taken place in Riddle’s room. Mr Speight said that while he sat at the desk, Riddle sat on the bed. He described how Riddle unbuttoned his shirt and touched his chest. He said that after a few sessions, Riddle suggested that he lie on the bed. While they had been lying side by side, Riddle rubbed Mr Speight’s crotch and his own. The abuse progressed to mutual masturbation and attempted rape.

Mr Speight recalled one occasion when the Claimant had come into Riddle’s room while Riddle had been lying on top of Mr Speight with his trousers undone and rubbing his erect penis against Mr Speight. Riddle had quickly rolled off and pulled up his trousers. The Claimant had given Mr Speight a concerned knowing look. He had also warned Mr Speight that Riddle was not to be trusted and he should be careful.

In his evidence, the Claimant also remembered one occasion when he entered Riddle’s room and saw Mr Speight and Riddle lying on Riddle’s bed and that Riddle had his hand in Mr Speight’s pants. His only recollection of warning Mr Speight was that he recalled saying Mr Speight should be careful not to trust Riddle.

The Claimant also referred to walking into Riddle’s room and finding Riddle lying on the bed next to another friend of his, K. I heard no evidence directly from K about this.

There came a point in the course of the trial when Ms O’Rourke wished to question witnesses about other claims which had been made against the Order because of alleged sexual abuse at Mirfield and whether they had been settled. Mr Norris objected to that line of questioning. I heard submissions and gave a short ex tempore judgment (on 14^th June 2018) upholding the objection. I made clear that questions could be asked about any other allegation of sexual abuse by Riddle, but not by other alleged abusers. Ms O’Rourke argued that in those other cases, the lapse of time had not been viewed by the Defendant as an insuperable problem and that was a matter which I could take into account in deciding whether to disapply the primary limitation period in the present case. In brief I was not persuaded that I would be assisted by attempting to compare the circumstances of those cases of other alleged abusers with the present one where the abuse was alleged to have been perpetrated by Riddle. It would also have greatly expanded the compass of the present trial. Furthermore, I observed, neither the original Reply, nor the Amended Reply had pleaded in answer to the limitation defence, any reliance on abuse by anyone other than Riddle or the Defendant’s response to such allegations. Had the pleading done so, there would have been an opportunity for the Defendant to challenge its relevance or appropriateness at that stage, or alternatively to make any necessary disclosure.

Mr Carroll, the Defendant’s solicitor, gave evidence that a close relative of the Claimant’s had, some years before, alleged that he had been abused by a different person (not Riddle) while he, too, had been a pupil at Mirfield. On 20^th December 2012, the relative had written a letter of claim in which the relative had also made an allegation of abuse by Riddle. The abuse by Riddle was said to have taken place at a time (1971) when the uncontradicted evidence in the present trial showed that Riddle had not then been teaching at the school.

After his departure in the summer of 1974, Riddle wrote a number of letters to the Claimant. Notably they included the following:

Ms O’Rourke submitted that the evidence showed that Riddle was effectively dismissed from Mirfield. She points to the following:

However, on this issue, I agree with Mr Norris that the available evidence does not allow me to draw this conclusion on the balance of probabilities. As he points out:

In his book, the Claimant said that his grades started dropping after the abuse started. He repeated the point in an amendment to his first witness statement. Ms O’Rourke submitted that the observations were borne out by entries in his diaries for 1974 and 1975 and in his school reports. She observed, for instance, that in February 1975 there were several entries in his diary recording his disappointment at poor results in the mock GCE ‘O’ level exams. She noted that in his school report for the summer of 1974, his marks were generally Cs and Ds. It was notable that the only A mark he received was from Riddle.

In my view, the picture was more mixed. Mr Norris and Mr Fewtrell prepared a schedule (Annexe 3 to their written note of opening) which makes good that contention. It may be, as the Claimant said, that he was helped by extra tutoring which his mother arranged to pass 5 GCE ‘O’ levels while at Mirfield and 3 more later as well as 3 ‘A’ levels. However, taking the evidence of his school performance overall it is in my view neutral as to whether the abuse did or did not occur.

I frame the question in this way to address the points made by Mr Norris about the inconsistencies in the Claimant’s evidence. However, I do so in the context of the central question as to whether the abuse occurred at all. If I were to conclude that on the evidence before me the Claimant was not abused, then, as Burnett LJ said in JL v Bowen, the claim would anyway fail and there would be no point in disapplying the primary limitation period. I set to one side, for the time being, what is claimed to be the consequential loss from the abuse, notably what is said to be the Claimant’s PTSD and loss of congenial employment as a priest and missionary.

Mr Norris is entitled to say that the Claimant has not given a consistent account of when the abuse started, when it stopped or its precise nature.

As to the start date, the Claimant told Dr Shapero that he was abused from age of 12 (and so from about 1970). He told Dr Hellin that the abuse began when he was 13 (and so from about 1971). The original Particulars of Claim alleged that the abuse began in 1972. He told Dr Kennedy that it began in February 1973 (when he was 14 years and 10 months old) which is the start date in the Claimant’s amended witness statement and in his Amended (and Re-Amended) Particulars of Claim.

As to the end date, I accept the evidence of Father Pelucchi that the Claimant told him during his visit to Rome in 2011 that it had continued until 1974/5 when he would have been 16/17. Father Pelucchi’s evidence in this regard is supported by his contemporaneous notes. The Claimant told Dr Shapero that it went on until he was 15 (i.e. 1973-74). Dr Hellin was told that it continued until he was 15 (1974) which was the same information given to Dr Kennedy and Professor Maden. That was also the end date in the original and Amended Particulars of Claim.

As to these dates, I accept that the diaries are likely to give the most accurate information. From these it can be seen that Riddle began teaching at Mirfield in February 1973. The abuse cannot have occurred before then. Mr Norris observed that, to Dr Hellin and in his amended witness statement, the Claimant said that he was pre-pubescent when the abuse started, suggesting that this was inconsistent with the abuse having begun when he was just short of his 15^th birthday. I do not accept this argument. It is well known that there is considerable variation in the onset of puberty and I notice that in the Claimant’s diary for 26^th September 1973 he wrote ‘taped my voice in soprano so I know what it sounded like before my voice breaks.’ It is also clear from the letters which I have quoted above, that Riddle left the school in the summer of 1974. The abuse cannot have continued beyond that point.

Mr Norris drew attention to the differences in the accounts of the nature of the abuse which the Claimant has given to the different health professionals who have reported on him. There is, with respect to Mr Norris, little of substance in these matters. The Claimant has said consistently that Riddle incited him to touch Riddle’s genitals. Whether this was over or under Riddle’s underwear is not particularly material for present purposes. He has said that on more than one occasion Riddle digitally penetrated his anus. Whether that happened regularly, as he said to Professor Maden, or about a dozen times, as he said to Dr Shapero, is, in my view, immaterial for the issue that I am now considering.

Mr Norris referred to other matters on which he submitted the Claimant had given unreliable evidence. I return to some of these matters below but, despite Mr Norris’s submissions, I would not conclude that the Claimant’s evidence as to the abuse occurring is so unreliable that the claim should fail in any event.

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

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

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

Because Mr Norris could not take instructions from Riddle, he was inhibited in how he could cross-examine the Claimant (or Father X or Christopher Speight). Absent instructions or other evidence to contradict their accounts of abuse, it would have been professionally improper for Mr Norris to suggest that they were not telling the truth. Where (in the case of the Claimant) there was such evidence, he could and did so, but I accept this meant that the nature of the cross-examination was limited.

Ms O’Rourke submitted that there had been other cases of historic sex abuse where the alleged abuser had died, but the court nonetheless decided to disapply the primary limitation period. I viewed such a submission with caution. Earlier decisions can give valuable guidance on the proper principles, but the application of those principles to the individual facts of the case are necessarily dependent on the whole corpus of facts and, inevitably those will vary from one case to another. This may be illustrated by one of the cases cited by Ms O’Rourke. In Raggett v Society of Jesus Trust 1929 for Roman Catholic Purposes [2010] EWCA Civ 1002 the Court of Appeal dismissed an appeal from a decision of Swift J. to disapply the primary limitation period in favour of a claimant who alleged that he had been sexually abused by a Jesuit priest at the Defendant’s Catholic college. The alleged abuser had died years before the claim had been brought. The appeal was primarily on the basis of the sequence in which the Judge had approached her task (she had considered first whether the abuse had occurred and had only then considered whether the primary limitation period should be disapplied). The Court of Appeal considered that such matters were for the Judge to decide in her discretion. The delay had been very great, but the Judge had considered that a fair trial was still possible. In upholding the decision, the Court of Appeal noted the ‘important’ observation by the Judge that the Defendant ‘had not seriously disputed the fact that [the deceased abuser] had been guilty of some abuse, in the form of filming the Claimant naked and fondling him sexually.’

In the present case, the Defendant does not admit that Riddle abused the Claimant as he alleges.

I have already quoted from the judgment of Burnett LJ in JL v Bowen (see above). It is also pertinent in this context to refer to what Lord Brown said in A v Hoare (above at [86]) and with which Lord Hoffmann, Lord Walker and Lord Carswell agreed),

I conclude that, setting aside the other matters relied upon by Mr Norris, the Defendant is significantly prejudiced in the conduct of his defence because of the death of Riddle. To that extent, at least, the cogency of the evidence available is the poorer because of the lapse of time.

Father Devenish’s witness statement said, as I have already mentioned, that Riddle had been a retired teacher who had taught English and Geography at Mirfield on a voluntary basis. The statement continued,

The Defendant is not therefore able to say with certainty, or even that it is more likely than not, that it would have had the assistance of documentary records about Riddle’s time at Mirfield if the claim had been brought within the primary limitation period. Ms O’Rourke is entitled to say that, despite the lengthy delay and even though Mirfield closed down in 1984, there are some records still in existence. Thus, for instance, there are still some of the Claimant’s school reports and some correspondence concerning his further dealings with the Order after he left Mirfield. But the Defendant is entitled to say that the absence of personnel records puts even greater emphasis on oral testimony and the difficulty of recollecting without the assistance of that contemporary documentation becomes the more acute with the passage of time.

The interval between the expiry of the primary limitation period and the commencement of proceedings was very long, some 34 years. The Claimant has given a number of different reasons for this delay.

Mr Norris challenged several of these propositions. Thus:

There are cases of historic sex abuse where no action is taken for many years either because the victim does not appreciate that what was done was wrong, or because the perpetrator continues to exert influence over the victim, or because shame and embarrassment acts as an inhibitor to disclosure. None of these fully explain the very lengthy delay in the present case. By 1998 at the latest, the Claimant had recognised that he had been abused and had disclosed the abuse to a counsellor and to his mother.

I am prepared to accept that the Claimant may have felt some concern about his mother’s reaction if he were to pursue a complaint against the Verona Fathers for Riddle’s actions. However, it is plain from the 2010 correspondence that he did not feel precluded from initiating a dialogue with the Verona Fathers while she was still alive. In the following year he wrote to Father Sanchez on 3^rd February 2011. His mother was then still alive. She died on 26^th April 2011. There is no satisfactory explanation for his failure to follow up on the 2010 approach until the following year or why, if he felt able to do what he did in 2010, he could not have made a similar approach much sooner.

The Claimant reacted relatively speedily after receiving Father Pelucchi’s reply by approaching solicitors in December 2011. The different impression which he gave in his book and in his evidence prior to the production of the correspondence with AO Advocates in December 2011 was simply untrue.

Even if I accepted the Claimant’s explanation for doing nothing until after his mother’s death, I agree with Mr Norris that this does not weigh heavily in his favour in the overall balance. Even if this was a good reason for delay from his own point of view, that is not the end of the inquiry. In Carroll v Chief Constable of Manchester Police [2017] EWCA Civ 1992 Sir Terence Etherton M.R. said at [42(9)],

Mr Norris is also entitled to comment on the absence of any explanation for the period between the Claimant’s first contact with solicitors in December 2011 and their letter of claim in March 2013. No doubt some time was needed for them to investigate the Claimant’s account, but it is striking that there is no statement from the solicitors or evidence from them (other than what can be inferred from their correspondence).

I have already described how the Claimant’s solicitors provided the Defendant’s solicitors with copies of his diaries for 1969 and 1973-5; how the back cover of his book referred to him making use of his 45 diaries and thousands of letters and other documents; how the Defendant’s solicitors asked for the other diaries, but that a supplementary list of documents dated 30^th October 2014 said that the Claimant did not know when the diaries for 1970-72 had gone missing, but he believed they were taken from his room at Mirfield and he had cleared out his other diaries and letters which he had used to write his book in 2014; how on 22^nd July 2015 the Defendant applied to strike out the claim on the basis of the destruction of documents after the claim had commenced (an application supported by the statement of the Defendant’s solicitor, Mr Carroll); and how the Claimant made a witness statement in response on 27^th July 2015.

In the course of the trial, some correspondence was produced between the Claimant and AO Advocates, the Claimant’s original solicitors. I have already mentioned the exchange of emails in December 2011.

There is a file note from AO Advocates dated 30^th August 2012 which included the following:

The last entry requires some explanation. As it happened, AO Advocates were also instructed in relation to a claim by the relative in connection with his time at Mirfield. The relative did make an allegation in relation to Riddle, but that was said to have occurred in 1971 which, on the Claimant’s account (supported by his contemporaneous diary) was before Riddle began teaching at the school. The relative did not give evidence at the present trial.

In his evidence the Claimant said for the first time that he may not have had a diary for each of the 45 years between 1969 and the publication of the book in 2014. He said the reference to 45 diaries on the cover of the book was an example of ‘poetic licence’. There may have been about 10 years when he did not have a diary. All of the diaries had been in the two suitcases which he had taken to AO Advocates (and which are mentioned in their file note). They had kept the diaries which the Claimant still had and which covered his years at Mirfield. They gave the others back to him. He was asked whether he was told that he could destroy these returned diaries. He said that had not been the case, but AO Advocates had not advised him that he should not destroy them. The Claimant said he had done so because he was living in a small one bedroom flat and he was short of space. He said he could not have left these diaries with his solicitors: they were not a storage facility.

In his witness statement opposing the strike out application, the Claimant had said this,

While the topic of the Claimant’s destruction of documents was first raised in the context of the Defendant’s application to strike out the claim as an abuse, Mr Norris submitted that the matter was also relevant to the issue of limitation. Ms O’Rourke did not dissent and I agree.

Ms O’Rourke was entitled to submit that the destroyed documents are only relevant for these purposes to the extent that they would have assisted the Defendant’s case or undermined the Claimant’s case (see the definition of standard disclosure in CPR r.31.6). If and so far as the destroyed documents would have helped his own case, that is his loss and of no relevance to the limitation issues. I agree with this. However, the Defendant does not have to go so far as to prove that any of the destroyed documents would have assisted him. That would be unrealistic. In my judgment it is sufficient if the Defendant can show that there is a realistic prospect that he would have been helped by the destroyed documents.

Ms O’Rourke submitted that none of the diaries which have survived refer to the abuse itself. In his evidence, the Claimant said that he had not mentioned the abuse elsewhere in his diaries and had not at any stage referred to disclosing it to anyone.

That is as may be, but in my judgment the Defendant can satisfy the appropriate test. I have in mind, in particular, the issues of damage and causation and, in that context, particularly the claim that the Claimant suffered PTSD as a result of Riddle’s abuse and that the abuse was a reason, or a significantly contributory cause to the Claimant being unable to join the priesthood or become a missionary (and to which I return in the following section of this judgment).

The documentation which has survived has assisted Dr Kennedy and Professor Maden in preparing their reports and in giving their evidence. I consider that if the large volume of other material subsequent to the Claimant’s time at Mirfield had also survived there is a realistic prospect that it would have contributed to that picture. Of course, it may have assisted the Claimant’s case, but it may well also have shown other reasons for such symptoms of PTSD as Dr Kennedy was able to detect or indicated other reasons (independent of any abuse) why the Claimant was thought to be unsuitable for ordination or work as a missionary.

I appreciate that when the Claimant destroyed the documents in the autumn of 2014, the Particulars of Claim did not plead that the abuse had caused him to suffer PTSD. Neither Dr Shapero nor Dr Hellin had suggested that was the case. The Particulars of Claim did, though, claim that the abuse had caused the Claimant to suffer the loss of congenial employment as a priest or missionary (see paragraph 19(f)).

The destruction of documents was deliberate, but I do not find that the Claimant deliberately chose documents which would harm his case or assist the Defendant. There would be no basis for any such finding. I have no reason to doubt the Claimant’s evidence that his motive in acting as he did was to make room and, so far as the documents had been with his mother when she died, to prepare her property for disposal. Nonetheless, this deliberate destruction of potentially relevant documents is a factor to be taken into account in making the limitation judgment.

I link these together because the Claimant alleges that they were both part of the consequences of abuse which he suffered at Mirfield. He was supported in this by Dr Kennedy. Professor Maden did not consider that the Claimant did suffer from PTSD and considered that there was an alternative explanation of his unsuitability for the priesthood in his personality or character traits.

In her closing submissions, Ms O’Rourke emphasised that, even if these heads of consequential loss could not be proved, the Claimant would be entitled to general damages for the assaults which Riddle committed on him.

Mr Norris submitted however that the Claimant faced a dilemma. If the claim for consequential loss was unsuccessful or disregarded, the level of recoverable damages would be very modest and one of the elements to be taken into account in weighing the equities for the purpose of deciding whether to disapply the primary limitation period was whether the claim was ‘modest in financial terms’ – see for instance Robinson v St Helens MBC [2002] EWCA Civ 1099 at [33] and Adams v Bracknell Forest BC [2005] 1 AC 76 per Lord Hoffmann at [55]. On the other hand, if the claim for consequential loss could not be dismissed on the available evidence, the Defendant is entitled to point to the additional handicap which he faces in meeting that claim by the absence of contemporary documents.

Mr Norris submitted that there were such documents here:

I agree with Mr Norris’s general analysis on this issue. I see considerable force in Professor Maden’s views that the Claimant does not suffer from PTSD. I reject Ms O’Rourke’s characterisation of Professor Maden as an advocate in the Defendant’s cause and consider that, if anything, Dr Kennedy had a tendency in that direction (as the deleted passages from his first report, but which I was shown as Exhibit 3, illustrated). Furthermore, in his evidence, Dr Kennedy described his meeting with the Claimant as a ‘clinical interview’ which, in my view, showed a worrying elision in his mind between the roles of a treating doctor on the one hand and an expert giving evidence before a court on the other. Dr Kennedy and Professor Maden, understandably, took as a given that the Claimant had been abused as he alleged. As Professor Maden rightly said, whether that was true was an issue for the court rather than the psychiatrists. I have said that I do not reject the Claimant’s case that the abuse occurred, but neither have I found it proved since (for the purpose of the question of limitation which I am now examining) that would be to put the cart before the horse. Without resolving that prior question (‘Did the abuse occur?’) it is impossible to reach a final view on whether, if it did, it caused the Claimant to suffer PTSD and, if indeed, contrary to the opinion of Professor Maden, it is right to diagnose the Claimant as suffering from PTSD. I can say that I am not persuaded that the evidence that he does suffer PTSD is sufficiently strong to add support to the Claimant’s case that the abuse did in fact occur.

Ms O’Rourke argued that even general damages for these assaults could not be described as ‘modest’ for someone, such as the Claimant, who was dependent on his income as a nurse. Ms Webb on the Claimant’s behalf suggested that an award in the region of £25,000-£30,000 would be appropriate for injury to the Claimant’s feelings. I do not accept that there has been anything in the Defendant’s conduct which would justify an award of aggravated damages (I return below to say a little more about the Defendant’s conduct), but even if I am wrong about that, Ms Webb accepted, as was right, that aggravated damages are still compensatory. The cases which speak of the relevance of the size of damages do so in the context of proportionality, and the amount at stake in the action by comparison with the costs of trying it. This has been a nine day trial and both parties impressed upon me the very high costs which have been incurred. In those circumstances, I consider that Mr Norris was right to characterise the general damages which the Claimant could expect to recover as ‘modest’. As I recognise below, proportionality features more prominently where limitation is tried as a preliminary issue, but it is not irrelevant where all issues are tried together and, indeed, it was an aspect on which Ms O’Rourke relied.

That leaves me in the position where I agree with Mr Norris that the Defendant is entitled to point to additional prejudice in meeting the Claimant’s case on PTSD. Had the case been brought earlier, it may well have been possible for the Dympna Centre records to be available. In the course of his cross-examination, the Claimant admitted that, while he had been at Dawson Place, he had opened a filing cabinet and surreptitiously photocopied some of the Order’s records about himself. He could not recall if these had included anything from the Dympna Centre, but he agreed that it could be inferred that he had done this in response to being told in about January 1979 that he was not going to be able to continue at Dawson Place. He could not remember for how long he had kept those documents. However, if the claim had been brought earlier there would have been some prospect that either the copies which the Claimant had made or the original records from Dawson Place would have been available. Confidentiality would have been no bar. As with all other cases where a Claimant’s medical condition is in issue, he would be expected to waive confidentiality or, if he refused, he could, at best, expect the court to draw an adverse inference in consequence.

We cannot know for certain whether the records would have said anything about any abuse by Riddle, but they may have done. Even if they did not, they may have provided helpful illumination about the Claimant’s mental health at the time. Mr Norris submitted that it was not open to Dr Kennedy to resile from the agreement in the Joint Report, but I am not aware of any rule of law to that effect. Nonetheless, I can and do, take into account Dr Kennedy’s view as expressed in the Joint Report into account. It also accords with what I would expect to be the case. In any case, even in his oral evidence, Dr Kennedy agreed that access to other diaries might have been a useful source of information about life events and the situation at home. As the Court of Appeal said in Bryn Alyn at [81],

The records from the Gestalt therapist have not been produced either. Although this therapy was some years later, those records may also have assisted the Defendant in meeting the claim that the Claimant’s loss included PTSD as a result of the abuse. If the Claimant did suffer PTSD, documentary evidence (including notably his diaries) may well have assisted the Defendant in showing that alternative or additional causes were in play.

As for the loss of congenial employment as a priest or missionary, that could have had many other causes apart from the abuse which the Claimant alleges he suffered. Even if the abuse did occur and it played a part in him being refused ordination, he was fortunate in being able to find an alternative vocation in nursing. At best, therefore this head of loss would lead to only a small increase in damages.

Ms O’Rourke submitted that the investigation conducted by Father Pelucchi following the Claimant’s visit to Rome in 2011 was perfunctory, was not in accordance with the Order’s own Code of Conduct and took too long.

Whatever force these criticisms have in relation to the investigation of the allegations then being made in relation to Father Hicks and Father Clarke is beside the point. Those allegations have been abandoned as far as the present claim is concerned.

Father Pelucchi had no means of contacting Riddle. Father Devenish (whom Father Pelucchi saw on his visit to the UK) assumed that Riddle was dead. If he had been still alive in 2011, Riddle would then have been 105. Even if Father Pelucchi and Father Devenish did not know Riddle’s exact age when he taught at Mirfield, their assumption that Riddle was no longer alive was a reasonable one. As it later transpired, the assumption was also correct. Riddle had died 12 years earlier in 1999.

Nor do I consider that Father Pelucchi took an unreasonably long time before responding to the Claimant’s allegations. The Claimant went to Rome and saw Father Pelucchi on 5th June 2011. Father Pelucchi wrote his letter of reply on 29^th November 2011. This was somewhat longer than the 2-3 months that Father Pelucchi had originally estimated and the Claimant had written a chasing letter on 10^th October 2011. However, in my view, it was reasonable for Father Pelucchi to consider that, in order to conduct even a preliminary investigation, he had to visit the UK and see Father Clark in Glasgow and Father Hicks in London. Father Pelucchi had other obligations and calls on his time (Father Pelucchi’s parents were then ill). He did visit the UK in mid-November 2011. He said that the Claimant’s allegations were important and required prompt investigation but they related to events many years previously. There was no immediate danger or fear of recurrence. The Claimant had said that he was prepared to wait up to 6 months for a reply (which was reasonable in the circumstances).

Father Pelucchi said that he allowed the Claimant to talk as much (or as little) as he wished about the nature of his allegations. It was a painful matter and Father Pelucchi had not thought it right to press him for information further than the Claimant wished to volunteer. In short, I do not consider that there is anything in the Order’s conduct in response to the Claimant’s first complaints that should count against it in my decision on limitation.

In his amended witness statement, the Claimant said that Father Pelucchi had lied when he said that the Order had not received ‘any other complaint about Mirfield’. That was a mischaracterisation of Father Pelucchi’s letter which had said ‘to the best of our knowledge and belief no similar allegation, suspicion or concern has ever previously been raised with regard to Michael Riddle’ [my emphasis]. Mr Carroll (the Defendant’s solicitor) gave unchallenged evidence that this statement was accurate: in November 2011 there had been no similar allegation, suspicion or concern with regard to Riddle. As previously noted, a close relative of the Claimant did subsequently make an allegation of abuse by Riddle at Mirfield, but that was in 2012. It also concerned a time (1971) before Riddle actually began teaching at Mirfield.

The Claimant did not reply to Father Pelucchi’s letter until AO Advocates wrote their letter before claim on 22^nd March 2013 when, as one would expect, the matter was placed in the hands of solicitors. There is nothing in the conduct of Father Devenish or the Order thereafter which should count against them in my decision on the limitation issue.

I have dealt separately with the Claimant’s destruction of documents. Here I address Mr Norris’s other criticisms of the Claimant’s conduct since the action was commenced.

There were first the changes in the experts on whom the Claimant relied. As described above, the Claimant’s solicitors first instructed Dr Shapero. As William Davis J. recorded in his judgment, Dr Shapero interviewed the Claimant twice: in October 2012 and then on 1^st May 2013. His draft report was dated June 2013. In June 2014 the Claimant obtained permission from Master Yoxall to rely on the report of Dr Hellin. No mention of Dr Shapero had been made at the Case Management Conference conducted by Master Yoxall. At the hearing before William Davis J. on 29^th July 2015, he was concerned about the trial that was then listed to take place in November 2015. He refused the Claimant permission to substitute Dr Kennedy for Dr Hellin. Again as I have recounted above, the Claimant’s appeal against this decision of William Davis J. was dismissed in May 2017. However, since the trial date had by then been lost in any event, the Court of Appeal itself granted permission to the Claimant to rely on Dr Kennedy in place of Dr Hellin. In my judgment, Mr Norris is entitled to say that this switching between experts on the Claimant’s behalf has led to the trial of this matter being delayed and where there has, in any case, been very great delay, its further exacerbation is a matter which can be taken into account against the Claimant. The orders that the Claimant should bear 80% of the costs before William Davis J. and all of the costs of the appeal to the Court of Appeal do not dissuade me from taking that view. Those orders were a result of his applications or appeals being unsuccessful, or largely unsuccessful. I am concerned with the delay which has resulted from those stages of the litigation and the impact of that delay on the Claimant’s application for the primary limitation period to be disapplied.

There were other matters on which Mr Norris was entitled to rely. Thus:

In Sayers v Hunters [2013] 1 WLR 1695 CA Jackson LJ said at [67] ‘the insurance position of the parties is a relevant factor and must be taken into account’. He cited Lord Bingham in Horton v Sadler [2007] 1 AC 307 at [32]. In that case Lord Bingham had said,

At one stage in her submissions, Ms O’Rourke argued that insurance was irrelevant in the present case because what Riddle had done was a series of criminal acts and insurance was not available to cover such matters. She would have been right if Riddle himself had been the defendant and relied on his absence of insurance cover. That, though, is not the case. Father Devenish is the representative defendant for the Order as Riddle’s employer. There is no rule of law which precludes an employer from taking out insurance to cover its vicarious liability for the crimes of its employees.

Although the Order did not have insurance, it does have considerable assets. Father Devenish is the chair of the charitable trust which holds the Order’s property. In his evidence, he confirmed that the trust had assets of some £3.4 million and longer term investments of about £5 million. He accepted that it was fairly wealthy. The world wide assets of the Combonis were about £200- £250 million and it was a fairly wealthy institution.

In those circumstances, it seems to me that the absence of insurance counts for very little in the balance which I must strike. Mr Norris urged me to take account also of the costs of the litigation – both the Defendant’s own costs and its liability to pay the Claimant’s costs if it is unsuccessful. Conversely, Ms O’Rourke told me that the Claimant did not have insurance to cover all his potential liability for the Defendant’s costs if he was unsuccessful, though there was no evidence for this assertion. In any case, I have already given my reasons as to why I do not regard the potential impact of costs as relevant to my decision as to whether to disapply the primary limitation period.

Mr Norris also submitted that the Order was a charitable institution and any damages paid to the Claimant would be a diversion from its charitable purposes. However, I did not find this a persuasive argument. At the time that the Claimant attended Mirfield the Order ran and operated the school. That activity carried with it various obligations. While, as a charity, the Order would have been relieved of some (such as an obligation to pay rates on its property), others (such as the obligation to deduct and account for income tax and national insurance on staff salaries) would have remained despite its charitable status. Its vicarious liability to pay compensation for the torts of its employees come into this last category.

For all of these reasons, I do not consider that the Order’s absence of insurance is a relevant factor for me to take into account in the balancing exercise.

The length of the delay after the primary limitation period expired was agreed to be 34 years. That very lengthy delay is itself a serious obstacle to the Claimant’s request that the primary limitation period should be disapplied.

In principle the lapse of time before the primary limitation period expired can also be taken into account, if not under paragraph (a) then as another relevant circumstance – see Collins v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 717. In the circumstances of this case I do not do so. It is a relatively short period (5-6 years from 1973 or 1974 till 1979) which is greatly overshadowed by the very much longer period after the expiry. In addition, until 1976 the Claimant was a minor.

I have examined above the reasons which the Claimant has given for the delay. His wish not to disturb his mother is to some extent belied by his approach to Father Sanchez in 2010 (the year before his mother died), although I recognise that the approach then was tentative and did not result in any public disclosure. But, even if this allowance is made in the Claimant’s favour, his wish to spare his mother’s feelings has to be weighed against what I find to be the very real prejudice to the Defendant in consequence of the delay. In the words of Sir Terence Etherton in Carroll such a reason (even if it were to be accepted) does little to temper the prejudice which the Defendant now faces.

For all the reasons which I have given above, I do consider that the evidence which has been adduced is likely to be substantially less cogent than if the claim had been brought before May 1979. The death of Riddle in 1999 is of particular importance, as I have explained, and that remains so notwithstanding the corroborative evidence which the Claimant has assembled. There are no ‘employment’ records of Riddle held by the Order and so the difficulty of providing oral evidence on these matters unassisted by contemporary documents is acute.

For the reasons which I have also explained, the evidence which the Defendant can give in response to the claim for PTSD is hampered by the absence of records of the therapy which the Claimant underwent in the Dympna Centre in about 1977 and, albeit to a lesser extent, the records of other therapy which he has undergone. The Claimant’s diaries which were destroyed may also have been illuminating as to his life events and potentially other causes for any mental ill health which he may have suffered.

The causes of action arose in 1973 and 1974. There is nothing in the conduct of the Defendant since then which bears on the issue of whether the primary limitation period should be disapplied. The Claimant does not suggest that the delay was caused by the defendant failing to provide information or inspection.

For litigation purposes the Claimant was ‘disabled’ while he was a minor. His disability accounted for a relatively small part of the period since the causes of action accrued. It is not material in the context of the facts of this case.

To some extent these matters overlap with those in paragraph (a) and I have discussed them already.

Apart from the reports of the doctors to which I have already referred, and the counselling which the Claimant has undertaken, I know of no other relevant medical advice which the Claimant has received. Apart from the recently disclosed material from AO Advocates, there is no evidence of any legal advice which the Claimant received.

In EB v Haughton [2011] EWHC 279 (QB) Slade J did disapply the primary limitation period in relation to a claim for historic sex abuse and did take into account in EB’s favour that A v Hoare represented a change in the law. However, in that case there was evidence that the Claimant had been advised, when Stubbings v Webb prevailed, that the Court could not extend the primary limitation period for deliberately inflicted assaults (see [80]). There is no such evidence here. Put another way, there is no evidence here that the state of the law as it was understood to be before A v Hoare played any part in the Claimant’s delay in starting proceedings.

The burden of showing that the primary limitation period should be disapplied is on the Claimant - Carroll [42(3)]. The burden is not necessarily a heavy one ibid [42(4)]. The Defendant has an evidential burden ibid [42(5)], but in the circumstances of the present case I find that the Defendant has readily discharged that evidential burden. Riddle’s death alone does that. For the reasons I have explained, despite the additional evidence which the Claimant has presented, the very lengthy delay in this case has seriously prejudiced the prospects of a fair trial. Although there are some contemporary documents, there are others missing which there are reasonable grounds to believe would have assisted the Defendant in defending issues of liability, damages and/or causation. The absence of contemporary documents (such as personnel records for Riddle) puts even greater emphasis on what witnesses can recall and the very lengthy delay in this case inevitably makes recall problematic. Even the Claimant, whose book cover boasts of his ‘remarkable memory’ and who said in his evidence that his memory was ‘very, very good’, has proved fallible.

I have also explained my views about the Claimant’s reasons for delaying proceedings. In summary, they do not significantly qualify or temper (to use Sir Terence Etherton’s words in Carroll at [42(9)] the prejudice which has been caused to the Defendant by the delay.

As will be apparent, I have specifically considered the matters listed in s.2D(3), but I have not limited myself to those matters. I have, as s.2D(3) requires, taken into account all the circumstances of the case. I have explained in the course of this judgment those which I do consider relevant (e.g. the Claimant’s destruction of documents and certain other aspects of his conduct since the proceedings began) and those which I do not consider relevant (such as the absence of insurance covering the Defendant’s liability). Numerous other issues were raised in the course of this trial. I have not thought it necessary or proportionate to rule on all of them. Had I done so, this already lengthy judgment would have been longer still.

I have also taken into account proportionality (although it is fair to say that this is of more obvious significance where limitation is taken as a preliminary issue and an investigation into proportionality is important to decide if ‘the game is worth the candle’). I accept that, on the evidence which I have received this is not a case where the Claimant’s prospects of establishing that the abuse took place are thin. However, if the claim is confined to general damages for the assaults themselves, the damages would not be very large. Ms O’Rourke urged me to have regard to the importance of an alleged victim of sexual abuse being vindicated by a court judgment in their favour. That may be, though as the passage from Lord Brown’s speech in A v Hoare showed, he envisaged that there would be some such victims who would not succeed in having the primary limitation period disapplied. Furthermore, when the alleged perpetrator is dead, vindication in this sense is rather more attenuated.

As I have made clear, the claim for damages is not confined to general damages for the pain and suffering and damage to feelings as a result of the abuse itself. However, while the claim for consequential losses increases the size of damages at stake in the action, it also entails further prejudice for the Defendant in terms of missing, potentially useful documents.

Taking everything into account I do not consider that it would be equitable to allow this action (or any cause of action by the Claimant) to proceed having regard to the degree to which the provisions of s.2A (the primary limitation period) prejudices the Claimant, and to the degree to which any decision of the Court under s.2D would prejudice the defendant or the Order which he represents.

It follows that I will not exercise the discretion in Limitation Act 1939 s.2D to disapply that primary limitation period.

I received helpful submissions on the other issues in the case, including, from Ms Webb, on behalf of the Claimant, succinct but well-formulated oral arguments as to the quantum which each head of loss should attract. However, since the parties were agreed that the primary limitation period had expired before the Claim Form was issued, if that is not to be disapplied, the other issues canvassed by the parties fall away.

The claim is dismissed.