BXB v Watch Tower And Bible Tract Society of Pennsylvannia & Anor (Rev 1)

Mrs B did not report the rape immediately. In 1991, however, she discovered that Mark Sewell had also been sexually abusing a girl aged under 14 who was related to him and was a member of the congregation (‘CXC’). At that point Mrs B reported both matters to the elders. They appointed investigators (whose identity is now disputed). The investigators interviewed Mrs B. She says that they asked her intimate and irrelevant questions, which caused her a great deal of distress. A ‘judicial committee’ consisting of elders from a nearby congregation was convened. There was a hearing at which Mrs B was asked further questions in the presence of Mark and Mary Sewell. Mark Sewell denied the allegations. The judicial committee found them not proven. Mrs B says that this was because of a Biblically derived rule which requires that allegations of serious sin which are denied must be corroborated by at least one additional witness (‘the twowitness rule’). Mark Sewell remained a member of the Congregation, but was later

It was not until decades later, long after Mrs B had ceased to be one of Jehovah’s Witnesses, that Mark Sewell’s offences were investigated by the police. On 2 July 2014, after a contested trial at which Mrs B had to give evidence, he was convicted of raping Mrs B and of 7 counts of indecent assault against CXC and another individual and sentenced to a total of 14 years’ imprisonment.

After the rape, Mrs B suffered from several episodes of depression. In 2014, before, during and after the trial, she also suffered symptoms which have since been identified as indicative of post-traumatic stress disorder (‘PTSD’). On 8 June 2017, this claim was issued. In the Particulars of Claim, two separate heads of claim are advanced. In the first instance, Mrs B claims that the Defendants are vicariously liable for the assault and trespass (i.e. the rape) committed by Mark Sewell on 30 April 1990 (‘the vicarious liability claim’). Secondly, Mrs B claims that the Defendants are liable in negligence for the failure of the elders of the Barry Congregation and other elders appointed by them ‘adequately to investigate and to conduct a proper inquiry into BXB’s allegation of rape and to take appropriate steps having done so’. In particular, Mrs B says that the Defendants had a duty to conduct the investigation in such a way as to avoid causing harm to her (‘the investigation claim’). Mrs B claims damages for the injuries she suffered and for losses of earnings which she says were consequent on her injuries.

The Defendants accept that Mark Sewell raped Mrs B. They do not accept, however, that they are vicariously liable for his tort. They also do not accept that they owed a duty of care in the conduct of the investigation or that they breached any such duty. They rely on a limitation defence and submit that it would be wrong to extend time under s. 33 of the Limitation Act 1980 (‘the 1980 Act’). They dispute the extent of the injury attributable to any breaches of duty and, in any event, deny that it can be shown to have resulted in any loss of earnings in the past or that it is likely to result in such losses in the future.

The issues are therefore these:

Mrs B gave evidence herself. She also relied on the factual evidence of her current husband HXB and of FXC, who was an elder in the Barry Congregation and the father of CXC. Mrs B’s expert evidence was given by Dr Ash Roychowdhury, a consultant forensic psychiatrist.

The Defendants relied on the evidence of Andrew Schofield, who has been an elder of the Jehovah’s Witnesses for 19 years and works in the Service Department of the Britain branch office of the worldwide organisation of Jehovah’s Witnesses. He was able to speak to the practices and teachings of Jehovah’s Witnesses in general, though not directly to the events that took place in Mrs B’s case. The Defendants also adduced evidence from Michael Jones and Brian Jones. They are not related and were both elders in the Barry Congregation. They say they were initially tasked with the investigation of Mrs B’s complaints, though Mrs B denies this. Finally, the Defendant

Mr Achonu identified the witnesses who were not called, but might have been had the claim been brought earlier. Thomas Brown served as presiding overseer of the Barry Congregation when Mrs B made her complaint. He died on 27 June 2017. Four other elders – FXC’s father, Hugh McGinty, Barrie Jones and John Wood – had also died, the latter three at various dates between 2000 and 2014. Tony Sewell died on 7 December 2015. David Newman, who served as chairman of the judicial committee that investigated Mrs B’s complaints, died on 18 January 2017. Finally, Edward Lee, who also served on the judicial committee, died on 13 November 2018.

This must be set against the evidence in the second witness statement of FXC, who was an elder in the Barry Congregation at the relevant time. He says that none of FXC’s father, Hugh McGinty, Barrie Jones and John Wood would have been able to give relevant evidence because, apart from an initial meeting where Mrs B’s complaints were disclosed to the body of elders, none played any part in the subsequent investigation. FXC points out that David Newman gave evidence at Mark Sewell’s criminal trial in 2014 but said that he could not remember any of the events. Edward Lee, by contrast, refused to give evidence at the criminal trial, but was interviewed twice by Mr Achonu before he died. Finally, FXC notes that there is no witness statement from Arthur Taylor, who served on the judicial committee, and is still alive.

As can be seen from the foregoing summary, some of the facts central to this claim are not disputed. There is no dispute that, on 30 April 1990, Mark Sewell, who was then an elder, raped Mrs B. There is also no dispute that the rape took place in Mark Sewell’s home in Barry after Mr and Mrs B and Mark and Mary Sewell had been out pioneering.

Ms Catherine Foster, who appeared for the Defendants, challenged Mrs B robustly as to her recollection of events. She made clear that she was not suggesting that Mrs B was telling deliberate untruths. Her case was that Mrs B had allowed her feelings of antipathy towards Jehovah’s Witnesses to colour her memory of events. (In her evidence, Mrs B described Jehovah’s Witnesses as a ‘cult’ on more than one occasion.) This, Ms Foster suggested, led her to construct a narrative of what had been said and done that was not accurate and to ascribe to herself and others motivations that they did not have at the time. In closing submissions, Ms Foster relied on the observations of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), at [15]-[18]:

Leggatt J went on to note that the process of civil litigation was apt to subject the memories of witnesses to further powerful biases. At [22], he concluded as follows:

Leggatt J’s observations were considered recently by the Court of Appeal in Martin v Kogan [2019] EWCA Civ 1645, [2020] EMLR 4. At [88]-[89], Floyd LJ (giving a judgment of the Court to which Henderson and Peter Jackson LJJ contributed) said:

The present case is, of course, not a commercial one. Some of the disputed matters (such as how and why Mrs B came to be, and remained, close to Mark Sewell) could hardly be expected to be the subject of documentary evidence. On those matters, the evidence could realistically only be based on the recollections of a very few witnesses – Mr and Mrs B, Mark, Mary and Tony Sewell. Of these, only Mrs B gave evidence. So, her evidence, together with documents showing what she had said previously to the police, psychiatrists and others, was the only evidence on some of the disputed points. In assessing her evidence, I bear in mind Leggatt J’s observations about the fallibility of memory and the tendency of the human mind, however honest, to construct a narrative after the event. But, subject to the question of limitation, it is – as the Court of Appeal has said – my duty to reach findings of fact based on all the evidence. That duty applies even when the principal or exclusive evidence on a particular matter comes from the recollection of one person. On other matters, there was a conflict of evidence. It has not been necessary to resolve all of these conflicts, because some of them are not material to the outcome. Where they are, I have resolved them on the basis of all the evidence before me, making findings of fact applying the ordinary civil standard of proof.

It will be necessary at points in the analysis to consider questions of religious doctrine. Ms Foster submits that there are limits to the extent to which the court should pronounce on such matters. Those limits are particularly pertinent to the investigation claim, but are also potentially relevant to the vicarious liability claim insofar as that

The modern law in this jurisdiction is set out in the decision of the Supreme Court in Shergill v Khaira [2015] AC 359. That case arose from a dispute about the power to appoint trustees of charitable trusts governing the use of two gurdwaras used by a sect of the Sikh religion. The case turned on who, according to the tenets of the particular sect, was the successor of a Holy Saint acknowledged by its members to be their spiritual leader. Lord Neuberger, Lord Sumption and Lord Hodge (with whom Lord Mace and Lord Clarke agreed) said this at [45]:

Shergill was applied recently in Otuo v Watch Tower Bible and Tract Society of Britain [2019] EWHC 344 (QB). That concerned a claim for slander arising out of things said at meetings of a congregation of Jehovah’s Witnesses. The words complained of were spoken at meetings convened to consider whether to disfellowship Mr Otuo on the basis of an alleged fraud, and then whether to reinstate him. The defendant submitted that the claims were non-justiciable. Warby J summarised the effect of Shergill at [48]:

Warby J went on to reject the non-justiciability defence in general at [49]. At [73(4)], however, he did hold non-justiciable an argument advanced on behalf of the claimant that the steps taken at the meeting had violated the ‘two-witness rule’ derived from Matthew 18:16. In doing so, he endorsed a passage from the judgment of Rowe J for the Supreme Court of Canada in Judicial Committee of the Highwood Congregation of

Mr Otuo’s claim for slander was later dismissed in a detailed judgment by Richard Spearman QC sitting as a Deputy High Court Judge: [2019] EWHC 1349 (QB). One of the contentions advanced at trial by Mr Otuo was that the decision of the elders to disfellowship him had been ultra vires the constitution of the congregation. In rejecting that submission, Mr Spearman had to make a number of findings about the content and nature of the teaching of the Jehovah’s Witnesses, where such findings were necessary to resolve a question of disputed legal right: see e.g. at [121]-[122].

Ms Foster also relied on Article 9 of the European Convention on Human Rights (‘the

The first of these, Serif v Greece (App. No. 38178/97), 14 December 1999, concerned the prosecution of an individual who claimed to be the leader of a Muslim sect in Rodopi when another individual had been appointed as Mufti under Greek law. At [51], the Court held that

That, however, was a case about direct state interference in the organisational structure and leadership of a religious group. So was the next case on which Ms Foster relied, Sindicatul ‘Pastorel cel Bun’ v Romania [GC] (App. No. 2330/09), 9 July 2013, which arose from a dispute about whether Orthodox priests were permitted by the statutes governing the Church to form a trade union. The Romanian courts held that they were not. The priests relied on their right to freedom of association under Article 11; the Government relied on the rights of the Orthodox Church under Article 9. The Grand Chamber of the Strasbourg Court held that the situation gave rise to no violation of Article 11 of the Convention. At [137] it said:

Finally, Izzettin Dogan v Turkey [GC] (App. No. 62649/10), 26 April 2016, concerned the refusal of the Turkish authorities to recognise the Alevi faith as a branch of Islam.

Ms Foster submits that it is possible to infer from these passages the proposition that secular courts and public authorities are prohibited from ‘determining whether religious procedural rules have been correctly applied, or indeed whether those religious rules should be changed’. I would certainly accept that the cases to which she refers show that Article 9 confers a right on religious communities to decide for themselves the rules governing who is entitled to be a member or to be recognised as a leader of the community. Any interference with that right must be justified as proportionate to a legitimate aim. Those cases, however, are dealing with a set of problems quite different from the one at issue here. State recognition of religious groupings gives rise to particular difficulties in the context of a human rights convention to which states with different attitudes to the relationship between church and state are party. One prominent strain in the political and jurisprudential philosophies of many of the contracting states is a strong separation of church and state. The French concept of laïcité is a well-known example. A similar ideological commitment to a strictly secular state was for much of its recent history seen in Turkey.

None of this, however, is directly relevant to the issue with which this case is concerned – namely, the proper limits of the secular courts when adjudicating on matters of religious doctrine. On this, the UK Supreme Court has been clear as to the position in English, Welsh and Scots law. It may be summarised in this way. The courts will not resolve disputes about matters of religious doctrine unless the determination of the dispute is necessary in order to decide a matter of disputed legal right. But where it is so necessary, and there are objective standards by which the dispute can be resolved,

The judgments of the Canadian Supreme Court in the Wall case, and of Warby J in the Otuo case, are good examples of this consistency. In the latter case, Warby J accepted that it was neither necessary nor appropriate for the courts to concern themselves with the question whether Mr Otuo had been validly ‘disfellowshipped’. That was (in part) because the validity depended solely on the proper interpretation of religious rules which had no contractual force. But that did not mean that the courts were disabled from considering whether a tort had been committed, even when the tort was said to have arisen from words spoken at a religious meeting. That approach, which I would respectfully endorse, seems to me to be not only consistent with the principle of state neutrality, but required by it. If the religious context in which something was said or done could render it non-justiciable even when it would otherwise be unlawful, the state would be derogating from the principle of neutrality between religious views, and between religious and non-religious views, by conferring on religious groups a special exemption from the general law. Moreover, the extent of the exemption would be fixed by reference to the beliefs of the group in question.

In this case, Mrs B relies on the teachings of Jehovah’s Witnesses at the relevant time as relevant both to the vicarious liability claim and to the investigation claim. In each case, the Defendants do not accept that she has correctly characterised the teachings in question. The areas of disputed evidence focussed on: (i) the duty of Jehovah’s Witnesses to maintain ‘good association’; (ii) the scope and extent of the duty of publishers to follow the instructions and guidance of elders; (iii) the extent of any guidance about the reporting of sins which were also crimes to the relevant secular authorities; (iv) the rules relating to the conduct of investigations and judicial committees; and (v) the rules about disfellowship, repentance and reinstatement.

Where the resolution of these disputes is required in order to resolve questions of disputed legal right, applying the principles discussed, I am obliged to resolve them, provided that there is an adequate objective standard by which I can properly do so. It would be inappropriate for me to reach my own views about what the scriptures require in particular situations (just as it was inappropriate for the Canadian Supreme Court in the Wall case, and for Warby J in Otuo to opine on compliance with the procedural requirements in Matthew 18:15-16). The key issue in the present case, however, is not what the scriptures require, but what Jehovah’s Witnesses believe and teach that they require. On that, the evidence does supply me with an objective basis on which to reach a view. Mr Schofield, in his clear and impressive evidence, made clear that Jehovah’s Witnesses believe the Bible to be the inspired word of Jehovah (God). The word of Jehovah was constant and it was possible to derive a set of principles from it. The application of those principles to the changing circumstances of modern life involved interpretation. The best evidence of how the Biblically derived principles were interpreted and applied at particular times came from contemporaneous editions of Watchtower, a periodical issued under the aegis of the worldwide organisation of Jehovah’s Witnesses, which Ms Foster confirmed on instructions is the authoritative conduit through which the teachings of the faith are communicated to congregations. The articles in Watchtower address particular subjects by reference to relevant passages from the Bible, with footnotes posing questions to guide discussion by members of the congregation in study groups. The content of these articles provides a reliable guide to the teachings of the faith at the relevant time on the subjects they address. To that extent, the task of ascertaining the content of the relevant beliefs and teachings is easier in the case of Jehovah’s Witnesses than it would be in the case of some other religious groups where it is less easy to identify a particular source of doctrine as authoritative and where, therefore, there is more scope for legitimate disagreement within the group and fewer manageable standards by which a court could resolve that disagreement.

One issue on which the principles derived from the Strasbourg authorities could be of more direct relevance is the scope or extent of any duty of care owed in relation to the inquiry and decision whether to ‘disfellowship’ a member of the congregation. Here, it is not possible simply to apply the test in Shergill and conclude that the resolution of disputed questions of doctrine is necessary to the determination of a disputed legal right, because the scope of the right is itself in question. Whether a duty of care arises depends on policy considerations; and if the imposition of a duty would involve the court having to determine questions of religious doctrine which courts are not equipped to determine, that could itself be a powerful policy reason for declining to impose one. The evidence relevant to liability

Mrs B was born in London in 1962. She married Mr B in 1981. They moved to Barry, South Wales, where he lived. She worked as an audio typist before the birth of her son in 1982. She had a daughter in 1983. She went back to work in 1986 or 1987 in a school, initially as a lunchtime supervisor and then as a teaching assistant. She worked part-time in that role for about 10 years.

Mrs B was introduced to the social network of Jehovah’s Witnesses from about March 1982, by Mr B’s cousin. In 1984, Mr and Mrs B decided to join the Barry Congregation. She was baptised, and so became a ‘publisher’, in 1986. Mr and Mrs B raised their children as Jehovah’s Witnesses, which, she says, meant mixing predominantly with other families who were also Jehovah’s Witnesses. For women, full-time work was discouraged, though not forbidden.

Mrs B first met Mark and Mary Sewell when Mark was a ministerial servant. Mr and Mrs B would attend the twice-weekly services at the Kingdom Hall and would see Mark and Mary there. The role of a ministerial servant included handing round the microphone at meetings and allocating tasks to members of the congregation. To become a ministerial servant or elder (posts only open to men), it was necessary for a publisher to demonstrate that he was a spiritually strong member of the congregation.

Mr and Mrs B and their children got on well with Mark and Mary Sewell and their children. Mrs B insists, however, that it was because of Mark’s position as a ministerial servant and then an elder that they became close. In her witness statement, she says:

Mark’s duties as elder included greeting members of the congregation when they arrived at Kingdom Hall. Mrs B recalls that he often used to greet her and other female members of the congregation by kissing them on the lips. He did this in the presence of other elders. This made Mrs B feel ‘extremely uncomfortable’, but no-one commented on it, so Mrs B did not feel able to complain to the other elders. She did, however, raise the subject with Mark himself. After she had done so, Mary told Mrs B that by raising the subject she had caused trouble between her (Mary) and Mark and asked Mrs B to allow Mark to continue to kiss her in that way. Mrs B says:

Mark and Mary had a volatile marriage. Mark took his anger and frustration out on Mary. The couple had rows. Mary sometimes called Mr and Mrs B in the early hours of the morning to say that he had smashed up the house or had been aggressive towards Mary or the children. Mark had started to drink heavily. At around this time, Mark started to flirt with Mrs B. He would make sexual innuendos, hold her hand and give her kisses on the lips and compliments.

Mrs B was so concerned about Mark’s behaviour that she suggested to Mary that the two of them speak to Mark’s father, Tony Sewell, who was also an elder. Without Mark’s knowledge, Mrs B and Mary arranged to meet Tony at his home towards the end of 1989. Tony explained that Mark was suffering from depression and that he needed love and support. Mrs B told Tony that Mark would listen to her, but not to Mary. Tony told Mrs B not to worry and that this was a normal part of depression. He requested that Mr and Mrs B provide Mark with extra support. Mrs B says:

Mrs B says that she would not have acceded to the request if it had not been made by an elder. She followed Tony’s advice, carried on supporting Mark and continued to report back to Tony about Mark’s behaviour.

Mark continued to act inappropriately towards Mrs B. On one occasion he came round to her house and asked her to run away with him. Mrs B continued to find it inappropriate that Mark would confide in her rather than Mary. On one occasion Tony brought Mary to Mr and Mrs B’s house and she remained there for four days because it was not safe for her to return home. Eventually, Mark’s behaviour became so unbearable that Mr and Mrs B tried to cut off contact with him and Mary, despite Tony’s instructions. When they did this Mark came to their house at 2 am, crying that he could not handle not being friends with them. Mrs B said:

The circumstances of the attack itself are not in dispute. It is necessary, however, to describe those circumstances briefly. On 30 April 1990, when Mrs B was 29 years old, she, Mr B, Mark and Mary were taking part in auxiliary pioneering in Cowbridge, South Wales. They all went to a local pub for lunch. Mark drank beer and wine. He argued with Mary and she threw a glass of whisky over him. Mark stormed off. Mr B

Mark was drunk and upset. A conversation ensued during which Mark pushed Mrs B to the floor, held her down, pushed up her skirt, ripped off her underwear and raped her. The penetration lasted for about 20 to 30 seconds, during which he ejaculated.

After they got home, Mrs B told Mr B what had happened. She says:

A few days later, there was a planned barbecue at the Sewells’ home. Mrs B confronted Mark about what had happened. Mark begged Mrs B for her forgiveness. Mrs B’s evidence was as follows:

In May 1990, Mr and Mrs B and Mark and Mary went together on a family holiday to Portugal. The holiday had been booked before the rape occurred. Mrs B says:

Later that year, Mr and Mrs B booked another holiday, to Greece, but Mark found out about it and he and Mary ended up coming too.

In 1991, there was an occasion on which CXC’s parents had asked a Jehovah’s Witness neighbour to look after CXC while they travelled to a funeral. The neighbour called Mrs B because CXC had gone missing. Mrs B went to look for CXC and found her wandering around the train station, weepy and traumatised, saying that she wanted to run away to London. Mrs B convinced her to come back to her house. Because she was unable to contact CXC’s father, she telephoned Mark, who was also at the funeral and had a mobile telephone in his car. Later that evening, CXC disclosed to Mrs B that Mark had been sexually abusing her. At about 2 am Mark arrived at Mr and Mrs B’s house and demanded to take CXC home. Mrs B told CXC not to go downstairs but CXC replied that things would only get worse if she did not go. She ended up going downstairs and going home with Mark.

Mrs B says:

It was at this point that Mrs B decided that she would have to inform the other elders about what Mark had done. She telephoned Mark to tell him that she was going to report him to the elders. He came to her house and insisted that nothing had happened between him and Mrs B. Mary soon called and threatened Mr B saying that if Mrs B went to the elders she would say that she and Mr B were having an affair. Nonetheless, Mrs B told CXC’s father – also an elder – what had happened to her.

Mrs B says that, once she had reported the matter, the task of investigating her complaint was assigned to three elders from the Cardiff and Penarth congregations. These were David Newman, the presiding Overseer of the Penarth Congregation, and Eddie Lee and Arthur Taylor, senior elders from Cardiff. Mrs B says that she was interviewed by these elders at her home. They took notes. Mrs B describes the investigation as follows:

The matter was then sent to a judicial committee, comprised of the same three elders and Michael Jones, of the Barry Congregation. This committee met at the Kingdom Hall. Mrs B says:

The result of the judicial committee’s deliberations was made known about a week later. Mrs B thinks that David Newman and the other two elders came to her home to communicate the outcome to her in person. She describes the conversation as follows:

Mrs B was cross-examined robustly by Ms Foster. One prominent topic was the discrepancy between the version of events given in her witness statement for these proceedings and what she said to the police when interviewed by them in 2013. Some of the differences appeared to me to be immaterial. For example, in her police interview, she had said that she had got friendly with Mark Sewell ‘about two to three years’ after she joined the Jehovah’s Witnesses, whereas in her witness statement she says it was ‘4 or 5 years later’. It is not clear to me that this was truly a discrepancy at all. (The police statement put the date as 2-3 years from 1985 or 1986, which may have been the date of Mrs B’s baptism; whereas the witness statement for these proceedings seems to put the date as 4-5 years from 1984, the date she first started going to Kingdom Hall.) Even if there were a discrepancy, it was not directly relevant to any of the disputed issues, nor in my view did it provide any basis for doubting Mrs B’s evidence on any of those issues.

Ms Foster suggested that, whereas her witness statement in these proceedings sought to emphasise the importance of Mark Sewell’s role as ministerial servant and then as elder as the cause of Mr and Mrs B’s friendship with him, that was not what she had said to the police in 2013. Again, I do not accept that any discrepancy between the accounts was significant. First, it must be borne in mind that the police interview was focussing on obtaining the evidence necessary to decide whether to prosecute Mark Sewell for raping Mrs B. It would have been of little concern to the officers to probe the precise circumstances in which Mrs B and Mark Sewell became friendly. Secondly, Mrs B did in fact mention key aspects of the account she now gives in her police interview. Just before 11:24:37, she said:

It was suggested to Mrs B that there was no Scriptural requirement to befriend or to give unquestioning loyalty to ministerial servants or elders. Mrs B’s answers on this were clear. Jehovah’s Witnesses were taught that they should maintain ‘good association’; and ministerial servants and elders were regarded as morally virtuous. Jehovah’s Witnesses believed that they were appointed by Jehovah (God), so by obeying them one was obeying Jehovah. Mrs B had known cases where those who questioned elders had been labelled as insane or apostates.

Ms Foster put to Mrs B that her account differed from that given to Prof. Maden, who had recorded in his report as follows:

Ms Foster put to Mrs B that, even if Tony Sewell had asked her to help, he had certainly not asked Mrs B to become Mark Sewell’s confidante. She replied that Tony Sewell had given the example of his wife, who had also had depression and mentioned that she had had a confidant, who was an elder (and therefore a man). Ms Foster suggested that this detail had not been mentioned by Mrs B in her witness statement and was an embellishment. In fact, however, it had been mentioned (at paragraph 40, where the elder who acted as confidant to Tony Sewell’s wife was named). Mrs B accepted that Tony Sewell had never specifically said that she must be alone with Mark

Ms Foster made much of the fact that, at the time of the trial, Mrs B had thought that the trip to Portugal had been before the rape, when in fact it was afterwards. This was an illustration of the way memory can re-order events that took place many years ago.

Mrs B was adamant that the two elders who came to her house to interview her about the rape were Eddie Lee and Arthur Taylor, not Michael Jones and Brian Jones. They had not advised her to go to the police and she had not done so, because she was traumatised, ashamed, frightened and did not want to bring reproach upon Jehovah’s name. This was an important issue on which Mrs B’s evidence could not be reconciled with the Defendants’. I shall return to it later.

Mrs B accepted that she had not been marched to the judicial committee hearing ‘with a gun to her head’, but she felt an obligation to the congregation and to CXC to confront Mark Sewell. She understood that the two-witness rule would apply, but thought that that rule would be satisfied given that there was an allegation from CXC. She was told, however, that CXC was a minor, so it was Mark Sewell’s word against hers.

With my permission, Ms Foster put to Mrs B a statement Mr B had made to police in 2013 in which he said that the judicial committee had ‘handled matters sensitively and professionally’. Mr Counsell had objected to the admission of that statement on the ground that it was hearsay. He submitted that Mr B could have been called; and that if he were not called, a hearsay notice should have been served. I rejected that submission, indicating that I would give my reasons for doing so in my judgment. I can do so briefly.

Mr B’s statement to the police is hearsay because it is made ‘otherwise than by a person while giving oral evidence in the proceedings’ and is ‘tendered as evidence of the matters stated’ (i.e. to show that the judicial committee proceedings were indeed conducted sensitively and professionally): see s.1(2)(a) of the Civil Evidence Act 1995

In this case, the document in question was disclosed by Mrs B. That fact does not, in and of itself, render the document admissible. However, when it was included by the Claimant’s solicitors in a proposed hearing bundle and the bundle was agreed, it became admissible, by force of CPR 32PD, para. 27, subject to any contrary ruling by the court or to written objection by Mrs B. If, as Mr Counsell submitted, the agreement to the hearing bundle was given in error and quickly rescinded, it would be appropriate to treat the rescission of the agreement as a notice of objection. Having considered the objection, I considered that it was appropriate to admit the document, but in considering the weight to be attached to it, the factors set out in s. 4(2) of the 1995 Act were relevant. In this case, Mr B’s view about whether the proceedings had been conducted sensitively or professionally was of very limited weight given that: (i) unlike Mrs B, he had not been cross-examined and without cross-examination it was very difficult to know what he might have meant by ‘sensitively’ or ‘professionally’; (ii) it had been open to the Defendants to call him as a witness (see s. 4(2)(a) of the 1995 Act); and (iii) the statement was made some 20 years after the event (s. 4(2)(b) of the 1995 Act).

Taken as a whole, Mrs B’s answers to questions put in cross-examination made me more, not less, confident in the reliability of her evidence in its essential aspects.

FXC was a Jehovah’s Witness from the age of 5. He was baptised at the age of 15, appointed a ministerial servant in his 20s and an elder when he was about 30, in 1982 or 1983. He has served on many judicial committees and held oversight of departments at circuit and district level. He says he has ‘extensive knowledge of how the organisation works’.

In his witness statement, FXC says:

FXC met Mark Sewell when he (FXC) joined the Barry Congregation in 1973. He notes that Mark’s family was ‘prominent within the congregation’ because his father was an elder and his brother Glynn a ministerial servant, later becoming an elder. Mark married FXC’s sister Mary in the early 1980s. FXC became close to Mark. He says:

FXC describes Mark as always being ‘tactile’ with women. He would greet them by kissing them on the lips. He was ‘hands on’ with CXC. FXC says:

CXC disclosed to FXC that Mark had been sexually abusing her. It was difficult to get her to say what had happened, so FXC encouraged her to write it down. FXC and his wife, together with CXC, went to confront Mark and Mary with the allegations. FXC says:

Within a month of reporting CXC’s allegation, Mrs B approached FXC and asked to speak to him. FXC went to Mr and Mrs B’s house. Shortly after he arrived, Tony Sewell also arrived. Mrs B told the two of them that she had been raped by Mark. Tony told her that, now she had told him and FXC about it she could forget about it. It would be dealt with. Tony then spoke to FXC on his own and tried to convince him that it was not necessary to take the matter further. FXC did not agree and went to the Presiding Overseer, Tom Brown. Tony tried to persuade him that the matter should be handled locally.

Meanwhile, a committee consisting of Brian Jones and Michael Jones had been set up to investigate CXC’s allegations. CXC and FXC were invited to a meeting with Mark and Mary at the Kingdom Hall. CXC read out what she had written down. FXC says:

CXC’s allegation was referred to a special committee consisting of seven elders. These were David Newman, Arthur Taylor, Eddie Lee and Alan Whitby (all from South Wales) and David Algar, Anthony Kendall and Edmund Kerr (who came from further away). The committee spent seven days in Barry, interviewing congregation members. On the final day of their visit the elders gave their judgment at Penarth Kingdom Hall. Tony Sewell was removed as an elder. Tom Brown was removed as presiding overseer. Advice was given to the other individual elders involved. The local elders then formed a judicial committee to deal with both CXC’s and Mrs B’s allegations against Mark Sewell.

FXC was not present at the judicial committee hearing concerning Mrs B’s allegation. His understanding, however, is that Mark was removed as an elder not because he had raped Mrs B (this allegation was found not proven), but because he had admitted to being drunk. As to CXC’s allegations, Mark continued to deny that he had sexually abused her. FXC says:

Having been removed as an elder, Mark Sewell was subsequently disfellowshipped. FXC says he was told that this was because of his ‘bad attitude’. Mark and Tony then started attending meetings at the Kingdom Hall in Llantwit Major, about 12 miles west of Barry. He was reinstated as a member about three years later.

At the trial in 2014, CXC gave evidence. She chose to do so without a screen. FXC describes the effect of the abuse and of the trial on CXC as devastating. It is not necessary to go into the details of that, since CXC’s claim is not now before me.

Like Mrs B, FXC was cross-examined robustly. It was put to him that he was now a campaigner on the issue of child abuse in the community of Jehovah’s Witnesses. He accepted that, but denied that he was hostile to Jehovah’s Witnesses in general. He still had friends who were Jehovah’s Witnesses. The careful and balanced answers he gave in cross-examination increased my confidence in the reliability of his evidence as a whole.

FXC was clear that Jehovah’s Witnesses are encouraged to maintain ‘good association’ and that this would include associating with pioneers, ministerial servants, or elders. It was true, he accepted, that Jehovah’s Witnesses believe that all are equal in the eyes of Jehovah (God). But elders in particular had the role of giving spiritual advice and guidance to others. This advice and guidance might concern any aspect of their lives. By way of example, elders might advise publishers that they were wearing the wrong dress, reading the wrong book or watching the wrong film. They might advise about those with whom it was appropriate to associate. For example, he and many other Jehovah’s Witnesses ran window-cleaning businesses. It would be inappropriate to clean the windows of an Army camp (since Jehovah’s Witnesses are opposed to militarism) or a shop that sold cigarettes (since Jehovah’s Witnesses teach that smoking is sinful).

FXC’s experience was that many people who are Jehovah’s Witnesses do not report sexual abuse to the police until they leave, because they are keen to ensure that no reproach should fall on the name of Jehovah (God).

It was put to FXC that Michael Jones and Brian Jones had not been the elders appointed to investigate CXC’s complaint. FXC was adamant that they had. He made the point that this is not something he could forget, having been present with his daughter when she had been required to explain how she had been sexually abused to two male elders in the presence of her abuser.

Brian Jones’s recollection was that, after hearing from Mrs B, he and Michael Jones met separately with Mark. He says:

Brian Jones believes that he and Michael Jones visited Mrs B at her home and advised her of her right to report the matter to the police.

It was put to Brian Jones in cross-examination that he had confused the investigation in

Michael Jones is a member of the Haverfordwest Congregation of Jehovah’s Witnesses. He has served as an elder for 25 years. He served as an elder in the Barry Congregation from 1991 to 1995. He recalls being told of allegations that CXC had been self-harming

Michael Jones recalls hearing from Tom Brown, the Presiding Overseer, of Mrs B’s allegation against Mark Sewell. He says this:

Michael Jones says that the advice was to tell Mrs B that she could present her allegation in Mark’s presence if she wanted, but that she did not have to do so. ‘In such a scenario,’ he says, ‘a wrongdoer’s conscience may move him to confess his sin.’ Brian Jones and Michael Jones were assigned to handle the matter. They met Mrs B and informed her of her right to go to the police. She did not wish to do that. They told her she could confront Mark if she wished, which she did. Michael Jones and Brain Jones therefore arranged a meeting between Mrs B and Mark and Mary. He believes that Mr B declined to attend. He recalls Mrs B describing the rape and Mark adamantly denying it, though admitting that he had been drunk. Michael Jones and Brian Jones reported their findings to the body of elders and he recalls they also wrote a report about the matter and sent it to the Britain branch.

A judicial committee consisting of Arthur Taylor, David Newman and Eddie Lee was convened. From that point on, matters relating to Mark Sewell were taken out of his hands. He recalls, however, that some time later, Mark Sewell was disfellowshipped. He does not recall being told the reason at the time, but was later shown a ‘Notice of disfellowshipping or disassociation’, which he exhibits, recording that Mark Sewell was disfellowshipped for ‘brazen conduct’. This refers to a range of misconduct, often including misconduct of a sexual nature.

In cross-examination, it was put to Michael Jones that he had mixed up the investigation in CXC’s case with the investigation in Mrs B’s case. His recollection was clear, however, that he and Brian Jones had indeed been assigned to investigate Mrs B’s case. He distinctly remembered writing the report on that investigation.

Andrew Schofield’s evidence was directed to the organisational structure and teachings of Jehovah’s Witnesses. It can be summarised as follows.

The organisational structure of Jehovah’s Witnesses is modelled on first century Christianity as described in Scripture. In line with the precedent set in Acts 15, the Governing Body provide Bible-based instruction to over 8.5 million Jehovah’s Witnesses in over 240 lands worldwide. There are around 90 branch offices worldwide and the activity of each is overseen by a Branch Committee. The Britain branch committee has offices in London. During the period relevant to this claim, the branch was divided into districts, overseen by a district overseer. Each district comprised approximately 12 circuits. A circuit comprised approximately 20 congregations and a circuit overseer (representing the branch office) visited each congregation for six days twice yearly.

Mr Schofield says:

Baptism is a public declaration of one’s dedication to God, whose name is Jehovah as revealed in the Bible. In order to be baptised, a person willingly undertakes a program of Bible study with one of Jehovah’s witnesses. Mr Schofield says:

The Bible describes two groups of Christian men who have responsibilities to care for the congregation – ‘overseers’ and ‘ministerial servants’ (Philippians 1:1). Overseers are also known as ‘elders’. During the relevant period, ministerial servants were recommended for appointment by the local body of elders in consultation with the circuit overseer when he made one of his biannual visits. The circuit overseer would, however, have to seek the approval of the Britain branch before the appointment was confirmed. Ministerial servants assist the body of elders with routine organisational and physical tasks, including keeping the Kingdom Hall clean and tidy, arranging the platform and microphones, operating the sound system, organising and making available to the congregation literature, serving as attendance at meetings in the Kingdom Hall, assisting in emptying contribution boxes and in counting and keeping the books relating to donations, managing territory records to help coordinate ministry and other tasks to which they may be assigned from time to time by the elders. Ministerial servants could also be assigned other more responsible tasks by the elders, including assisting an elder in leading a congregation book study group, handling certain talks at mid-week congregation meetings or delivering 45-minute Bible-based talks at public meetings usually held at the weekend.

A body of Elders made up of mature spiritual men is carefully selected and approved for appointment based on scriptural qualification set out in 1 Timothy 3:1–7 and Titus 1:5–9. An elder will have been baptised for many years and will previously have served as a ministerial servant. During the period relevant to this claim, they were recommended for appointment by the body of elders in consultation with the circuit overseer. As with ministerial servants, the appointment required the approval of the Britain branch. The primary role of elders is to guide and protect the congregation spiritually, including taking the lead in evangelising and presiding over congregational meetings.

As to the authority and status of elders, Mr Schofield says:

Mr Schofield refers at this point to two articles in Watchtower. The first, published on 15 November 1991 and entitled ‘An overseer must be self-controlled’, includes the following passage:

The Bible teaches that some serious sins, such as sexual immorality (including rape and child sexual abuse), blasphemy, apostasy, idolatry and similar gross sins, require more than forgiveness from an offended individual (1 Corinthians 6:9, 10; Galatians 5:1921). Because the spiritual and moral cleanness of the congregation is threatened, the Bible requires that such sins must be handled by the elders (1 Corinthians 5:6; James 5:14, 15). Individuals may approach the elders to confess their own sin or to report what they know regarding the wrongdoing of others (Leviticus 5:1; James 5:6). Where such a report is made, elders will be appointed to look into the matter. At this point Mr Schofield referred to a document outlining training for elders delivered in the period September 1998 to February 1999. It instructs elders in how to deal with allegations of child sexual abuse and says this:

Mr Schofield explained that in conducting the spiritual investigation of an allegation of serious sin, the elders apply the Bible’s rule of evidence which requires ‘the testimony of two witnesses’ (Deuteronomy 19:5; Matthew 18:16; 1 Timothy 5:19). This means that, in the absence of a confession, the allegation must be corroborated by a second witness for the congregation to take internal ecclesiastical judicial action. For these purposes, it is sufficient if the second witness attests to a separate allegation of a similar nature against the same accused person. If an accusation is evidenced in this way, the body of elders would assign a congregation judicial committee of at least three elders to handle the matter. Mr Schofield says:

At this point, reference was made to a letter sent by the Britain branch to all bodies of elders in Britain on 30 January 1992. Under the heading ‘Child Abuse’, it said:

Mr Schofield explains that in every situation where wrongdoing is established, the primary objective of the judicial committee is to try to restore the wrongdoer to spiritual health. It is necessary for the committee to decide whether the wrongdoer is scripturally repentant. If so he will remain one of Jehovah’s Witnesses, though restrictions may be placed on his activity within the congregation. If he is not scripturally repentant the wrongdoer will be disfellowshipped (i.e. expelled) to safeguard the moral and spiritual cleanness and good name of the congregation. A wrongdoer who is disfellowshipped in this way will be shunned by faithful congregants unless and until he demonstrates genuine repentance, applies for reinstatement and is accepted back into the congregation (1 Corinthians 5:5, 11–13).

In cross-examination, Mr Schofield was asked in particular about the status and position of elders. He said that elders were appointed to shepherd the congregation. They could administer warnings if a member of the congregation was straying from the teachings of Jehovah. The role of elder was held in high regard both by the congregation and by those who held it. Elders should be examples to other members of the congregation.

Mr Counsell put to Mr Schofield an article from Watchtower published on 15 September 1989 entitled ‘Be Obedient to those Taking the Lead’, which included these passages:

Mr Schofield accepted that the Watchtower article was an accurate summary of the beliefs of Jehovah’s Witnesses. He emphasised, however, that members of the congregation were not required to give unquestioned obedience to elders. The obligation to be ‘submissive’ applied only to those instructions which were in accordance with the scriptures. Members of the congregation were required to apply their own Bible-trained consciences before simply obeying the instruction or guidance of an elder. Submission, he said, was not the same as subjugation.

Mr Schofield was cross-examined about the letter sent by the Britain branch to all bodies of elders in Britain on 30 January 1990. The guidance in that letter about reporting to the secular authorities relates specifically to ‘child abuse’. Mr Schofield

It is now settled that an action for deliberately inflicted personal injury, as well as for negligently inflicted injury, is subject to the primary limitation period in s. 11 of the 1980 Act – i.e. 3 years from (a) the date on which the cause of action accrued or (b) the date of knowledge if later: A v Hoare [2008] 1 AC 844.

That means that the primary limitation period for the claim arising out of the rape (the vicarious liability claim) expired on 30 April 1993. The primary limitation period for the investigation claim expired some time later. The Claim Form in this case was issued on 8 June 2017, after the agreement of a 3-month moratorium on limitation from 6 January 2017 to 6 April 2017. The result is that both the vicarious liability and the investigation claims are time-barred unless I conclude that it would be equitable to allow either or both of those claims to proceed under s. 33 of the 1980 Act.

Section 33(1) requires the court to consider whether it would be equitable to extend time having regard to the degree to which the provisions of s. 11 would prejudice the claimant and the degree to which any decision of the court to extend time would prejudice the defendant. Section 33(3) provides as follows:

In A v Hoare, Lord Hoffmann (with whom Lord Walker, Lord Carswell and Lord Brown agreed) emphasised at [49] the importance of taking into account the reasons for the delay and giving due weight to the question whether ‘the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered’. Lady Hale agreed, saying at [60]:

In Cain v Francis [2009] QB 754, Smith LJ (with whom Maurice Kay LJ and Sir Andrew Morritt C agreed) said at [57]:

In B v Nugent Care Society [2010] 1 WLR 516, Lord Clarke MR (giving the judgment of the Court) pointed out at [14]-[15] the substantial effect that the decision in A v Hoare had had on historic sexual abuse cases – particularly those arising from abuse in care homes:

In this case, of course, vicarious liability does not simply ‘follow’ from the fact of the rape. At [21]-[22], Lord Clarke said this:

The Court of Appeal returned to this passage in Bowen Archbishop v JL [2017] EWCA Civ 82. Burnett LJ (with whom Sir Ernest Ryder and Lewison LJ agreed) said this at [26]:

In CD v Catholic Child Welfare Society [2018] EWCA Civ 2342, Lewison LJ (with whom Rafferty LJ agreed) noted that delay of itself does not preclude disapplication of the limitation period. Rather, ‘[w]hat is of importance is what prejudice the defendant has suffered by the delay’.

The question whether to extend time under s. 33 must be considered for each cause of action separately: Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus) [2018] EWHC 1895 (QB), at [73].

For Mrs B, Mr Counsell submits that the mental health problems from which Mrs C has suffered for years – and which are now broadly accepted by the Defendants’ expert Prof. Maden – are at the heart of her inability to bring this claim earlier. She has suffered from lengthy episodes of depression and, more recently, PTSD as a result of the assault. The rape has significantly increased her vulnerability to further episodes of debilitating depression. The most serious decline in her mental health came in the runup to and at the time of the criminal trial in 2014, in which she had to give evidence. Mr Counsell emphasised in particular her feelings of shame and guilt, which are of course irrational but all too common in the minds of survivors of sexual abuse. He submits that it is frequently the case that those who have suffered rape and other forms of sexual assault find it ‘excruciatingly painful to have to relive the events, over and over again, by reporting it to strangers such as the police, social services and lawyers’.

Mr Counsell submits that the evidence is not materially less cogent because of the passage of time such that a fair trial cannot take place, nor such that it can be said that the defendants will have suffered significant prejudice in defending this claim. So far as the vicarious liability claim is concerned, the potentially relevant evidence is likely to come from one of a small number of witnesses. Of those only Mrs B has given evidence, but any of the others, with the exception of Tony Sewell, could have been called. As to Tony Sewell, no attempt was made to contact him before his death. So far as the investigation claim is concerned, the evidence established that the records of the judicial committee hearing had been destroyed despite clear guidance that they should be preserved. It was not clear when the records had been destroyed but it was likely soon after the hearing itself. Of the eight witnesses identified by Mr Achonu, four (FXC’s father, Mr McGinty, Mr Barrie Jones and Mr Wood) would not have been able to give useful evidence anyway. As to the others, Tom Brown did not die until two years after the Defendants had notice of the claim, but the Defendants’ solicitors had done nothing to approach him despite the fact that he was now said to be a ‘key witness’.

Mr Counsell emphasises the following factors. First, the rape itself is admitted and the evidence includes the account given by Mrs B in her interview and statement to the police. If it had been helpful to them, the defendants could have asked for the transcript of the evidence she gave at trial to be included in the bundle. Second, as to the role and status of elders, there is the evidence of FXC and Mr Schofield. It would have been open to the Defendants to call Mark or Mary Sewell. Third, the principal complaint

I consider first the length of the delay and the reasons for it. On any view, the delay is substantial – the claim form was issued more than 24 years after the expiry of the primary limitation period for the vicarious liability claim. It is for Mrs B to explain the delay. Mrs B’s explanation must be taken in stages. At first, immediately after the rape, Mrs B says that she did not report it because she had been taught to forgive a brother who was truly repentant and because she was terrified of bringing shame on Jehovah’s name. As to her state of mind after the investigation, she says this:

Mrs B conceded in cross-examination that she had not been told, in terms, not to go to the police. There was evidence that she had been encouraged to go to the police by FXC and possibly by others, though I accept she also felt social pressure not to bring shame on the name of Jehovah by making a complaint to the police against Mark Sewell. But there was nothing to gainsay Mrs B’s evidence about the effect on her of the elders’ investigation and its outcome. I accept her evidence that she was humiliated and upset and, as a result, felt that she would not be believed if she reported the matter to the police. That was consistent with the medical evidence, which suggests that the investigation itself triggered at least one episode of depression and the trial in 2014 triggered another such episode, with additional symptoms of PTSD. The fact that, for large parts of the period between 1990 and today Mrs B suffered no diagnosed mental illness does not mean that the psychological effects of the rape and investigation were absent during those periods. Indeed, the absence of symptoms requiring specific medical intervention for substantial periods between the rape and the present day is likely to be explained by the fact that during those periods she managed to avoid any concentrated focus on the rape and the subsequent investigation.

I do not accept Ms Foster’s submission that, in the absence of psychiatric evidence that she was disabled from bringing the claim, ‘she has not provided any reason for not pursuing her claim, other than that she didn’t want to’. There is nothing in the statute, or the case law interpreting it, to suggest that the only valid reason for delay in a case of this kind is a diagnosed psychiatric disability covering the entire period of the delay. Section 33(3)(a) is framed in deliberately general terms. It invites focus on the ‘reasons’ for the delay. Mrs B has given evidence of her reasons, which I accept as true:

The key factor in this case is the effect of the delay on the cogency of the evidence. Here, it is important to consider the vicarious liability claim and the investigation claim separately. I start with the vicarious liability claim. In this case, unlike many civil cases in which sexual abuse is alleged, the fact of the rape is admitted. The principal area of dispute is about the extent to which Mark and Tony Sewell’s positions as elders played a part in it. That is something on which the direct evidence could only ever come from a very few witnesses – Mrs B, Mr B, Mark, Mary and Tony Sewell. The Defendants could have sought evidence from Mr B or from Mark or Mary Sewell. There is nothing to indicate that they have ever done so. Although Tony Sewell died in December 2015, there appears to have been no attempt to seek evidence from him before that. This was despite the fact that Tony Sewell’s request that Mrs B act as Mark Sewell’s confidante, and the significance of the fact that it came from an elder, had both featured in Mrs B’s evidence in the criminal trial in 2014 and were both prominent in the account given in the letter before claim dated 9 March 2015; and despite the fact that Mr Achonu interviewed other potential witnesses in September 2015.

As to the investigation claim, it is common ground that Mrs B was expected to attend to meetings at which she was questioned by elders about how the rape occurred. So far as the first meeting with the investigating elders is concerned, the Defendants have been able to call the two elders who they say undertook the investigation. The passage of time has of course had some impact on their ability to recall the precise details of what happened, but those said by the Defendants to be the key participants in that initial meeting were available.

So far as the judicial committee hearing is concerned, certain witnesses who would have been available to the Defendants if the claim had been brought within the primary limitation period are not now available. But that is only the starting point. FXC was right, in my judgment, to say that none of FXC’s father, Hugh McGinty, Barrie Jones and John Wood was likely to have be in a position to give material evidence, because none was involved with the judicial committee hearing. David Newman (who chaired the committee) was interviewed before his death. Edward Lee (another member of the committee) was interviewed twice. It was notable that the Defendants did not apply to adduce Mr Achonu’s notes of those interviews as hearsay evidence once Messrs Newman and Lee had died. Mr Achonu also disclosed in cross-examination that he had interviewed Arthur Taylor (the other committee member) in September 2015. He remains alive. I cannot speculate about what Messrs Newman, Lee and Taylor told Mr Achonu on those occasions because the Defendants have maintained privilege over the notes of the interviews. That is their right, but having elected to do so, they are hardly in a good position to assert that they are materially prejudiced by the delay in bringing the proceedings.

Nor is this a case where it can be said that Mrs B’s evidence, in its essentials, was so inconsistent as to be obviously unreliable (as in JL’s case). To the extent that there were disputes about the accuracy of Mrs B’s understanding of the religious obligations to which she was subject, the main evidence relevant to the resolution of these disputes came from the teaching materials and, in particular, articles in Watchtower, as explained by Mr Schofield. It is difficult to see how the evidence on these matters would have been significantly different had the claim been brought in the early 1990s.

In all the circumstances, I am unable to conclude that extending time under s. 33 of the 1980 Act would cause significant prejudice to the Defendants.

Ms Foster, for the Defendants, does not suggest that the matters identified in s. 33(3)(c) or (d) have any relevance here. As to s. 33(3)(e), she submits that Mrs B failed to act promptly both before and after Mark Sewell’s trial in 2014. As to the position before the criminal trial, the lack of promptness is explained by the effect the investigation had on Mrs B. As to the position after it, it must be borne in mind that the trial precipitated a significant psychiatric injury. The letter before claim was sent in March 2015. Given that enquiries were made of (some) potential witnesses in the light of that letter, I find it difficult to ascribe great significance to the delay between that letter and the issue of proceedings in 2017. It is not suggested that any separate issue arises under s. 33(3)(f).

For all these reasons, I conclude for the purposes of s. 33(1) of the 1980 Act that it would be equitable to allow the action to proceed in respect of both the vicarious liability claim and the investigation claim.

Secondly, Father Clonan's functions as a priest included a duty to evangelise, or “to bring the gospel to be known to other people … Roman Catholics and non-Roman Catholics” to quote from the evidence of Monsignor Moran. As a result he was, as Monsignor Moran also accepted,

Thirdly, given that the claimant was aged 12 or 13 when his association with Father Clonan started, it is significant that Father Clonan was given a special responsibility for youth work at the church. It underlines the point that, when getting to know, when effectively “grooming”, the claimant, Father Clonan was ostensibly carrying out one of his specifically assigned functions in the church.

Fourthly, Father Clonan was able to develop, and did develop, his relationship with the claimant by inviting him to a disco which was on church premises and which he organised as a priest at the church. Thus, the claimant was drawn in to the relationship through the medium of a churchorganised function carried on in church premises by Father Clonan, a priest at the church. Fifthly, the relationship was further developed by Father Clonan getting the claimant to help clear up after discos. There is no evidence that the claimant was paid for this work, but it does appear that this work, on church premises at the request of a priest at the church, led to the claimant doing other work for Father Clonan. Thus, Father Clonan's role as priest in the archdiocese gave him the status and opportunity to draw the claimant further into his sexually abusive orbit by ostensibly respectable means connected with his employment as a priest at the church.

It is true that much of the paid work which the claimant subsequently did for Father Clonan (washing his cars and cleaning his houses) was not connected with his priestly role, although it could, to an extent, be said to be ostensibly connected with the evangelising aspect of Father Clonan’s job. Sixthly, however, it seems to me that the work which the claimant carried out in the presbytery is of some assistance to his case on vicarious liability. The fact that the claimant was working at the request of a priest on premises owned by the priest's archdiocese, adjoining the church where the priest worked, and which were lived in by the priest is relevant to the issue of vicarious liability for the first three reasons to which I have already referred, namely moral authority, evangelisation, and youth work.

Seventhly, it appears clear that the first incident of sexual abuse, as well as a number of other incidents, against the claimant occurred in Father Clonan's room in the presbytery. It is not merely that the abuse started and continued in the employer's premises where the employee resided because of his employment. It is also that the employee's job, Father Clonan's priestly duty, involved spending time alone with individuals such as the claimant. As Monsignor Moran said, “the normal course of a priest's work” would involve him “spend[ing] some time alone with people who were searching for truth”. Again, the fact that Father Clonan was spending time alone with the claimant for illegal sexual purposes is not the point: the opportunity to spend time alone with the claimant, especially in the presbytery, arose from Father Clonan's role as a priest employed as such by the archdiocese.’

Longmore LJ agreed with Lord Neuberger, save that he would not have placed so much emphasis on the Church’s duty to evangelise: [91]. He summarised his reasons at [84]:

In Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1, Lord Phillips (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agreed) noted at [21] that, when considering the imposition of vicarious liability, it was necessary to ask two inter-related questions: (i) Is the relationship between the tortfeasor and the party said to be vicariously liable one that is capable of giving rise to vicarious liability? (ii) Is there a sufficient connection between that relationship and the act or omission of the tortfeasor for vicarious liability to be imposed?

The first question depended on whether the relationship was sufficiently akin to that of employer/employee: [55] and [60]. As to the second, Lord Phillips said this at [86][87]:

In A v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB), Globe J upheld a claim by a woman, A, against the Britain branch of the worldwide organisation of Jehovah’s Witness and against two congregations of which she had been a member. A had been sexually assaulted when a child between the ages of 4 and 9 by an individual who had at the time been a ministerial servant in her congregation. She claimed, first, that the defendants were vicariously liable for the assaults and, second, that they were vicariously liable for the acts of the elders who had failed to take steps to protect her once they knew that he had sexually assaulted another child in the congregation. Both claims succeeded. (There is no analogue here of the second of these claims, because it is not suggested that the Barry Congregation knew or had reason to know that Mark Sewell might be a danger to Mrs B.) 137 Globe J held as follows at [11]-[19]:

Globe J considered whether the defendants in that case (two local congregations of

At [64], Globe J made reference to the fact that allegations of serious sin could be brought before a judicial committee, which could lead to the offender being disfellowshipped. At [65], he said:

At [66], Globe J concluded that the organisational structure of Jehovah’s Witnesses had

At [70], Globe J asked whether a ministerial servant could be considered more like an independent contractor than an employee. He answered that question in the negative, because:

At [74], Globe J concluded that, whatever test was applied, the relationship between the congregation and its ministerial servants was one capable in principle of giving rise to vicarious liability.

At [75]-[90], Globe J considered the second stage of the analysis: the connection between the acts of sexual abuse and the relationship. At [76], he relied on Maga, which he said was

At [86], Globe J was

Next were two cases heard together by the same constitution of the Supreme Court: Cox v Ministry of Justice [2016] AC 66 and Mohamud v Wm Morrisons Supermarkets

Cox was concerned with the first of these questions. It arose from an accident caused by a prisoner working in a prison kitchen. At [24], Lord Reed summarised the principle to be derived from the Catholic Child Welfare case as follows:

In Mohamud, the question was whether a supermarket was vicariously liable for an assault committed by one of its employees in the supermarket car park. It turned on the application of the second stage of the test for vicarious liability. Lord Toulson (with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Reed agreed) said this at [44]-[45]:

Ilkiw v Samuels [1963] 1 WLR 991, to which Lord Toulson referred, was a case in which the Court of Appeal had found a company liable for an injury caused by one of its lorries when the driver (contrary to his express instructions) had permitted an unqualified person to drive it in the course of loading goods. The question whether to impose vicarious liability involved in the first instance:

Lord Toulson’s conclusion on the facts of Mohamud was expressed in this way at [47][48]:

The principles set out in Mohamud were applied in Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214, [2019] ICR 459. There, the defendant company was held liable for an assault committed by its managing director at a hotel to which staff had gone for drinks after a company Christmas party. Applying that approach, Asplin LJ held at [25] that the company was liable because, although the assault occurred at 3am when everyone was inebriated, it happened when the managing director was lecturing staff about his own managerial authority. Thus, Asplin LJ held:

Irwin LJ emphasised that the imposition of liability for violent acts of employees was exceptional, saying this at [38]:

Moylan LJ agreed with both Asplin and Irwin LJJ.

For Mrs B, Mr Counsell submitted that, so far as the first limb of the test for vicarious liability is concerned, I should reach the same conclusion as Globe J in A v Watchtower. Indeed, since that case concerned a ministerial servant, the present case – which concerned an elder – was a fortiori. The Jehovah’s Witnesses exercise a far greater degree of control over the activities of their elders than an employer would over its employees. Elders are at the heart of the congregation because they lead it. They exercise jurisdiction over all aspects of the life of the congregation members, from serious sin to what others might regard as normal activities such as smoking and drinking. An elder does not leave his role and duties at the Kingdom Hall when he goes home. He is expected to behave in a way consistent with his status at all times. Failure to do so can lead – as it did here – to removal as an elder. The organisation of Jehovah’s Witnesses is highly structured from its governing body in New York to its branch office in London, to districts (at the relevant time), circuits and congregations. Elders are supposed to acts as shepherds to the “sheep-like” ones. They share the aims of the organisation as a whole, which is to “spread the word”. Elders are integrated into the structure of the organisation as a whole. Insofar as they are assigned privileges, these are to assist and serve the organisation’s evangelising purpose, which they share.

As to the second stage of the vicarious liability test, Mr Counsell submits that the present case bears similarities to Maga. In that case, the ‘progressive stages of intimacy’ were possible only because of the priestly status of the abuser. So here, Mr Counsell submits, all contact between Mrs B and Mr Sewell ultimately stemmed from his role as an elder. The evidence was that members of the congregation were taught to be obedient and submissive to elders. So, his manipulative and bullying behaviour was enabled by his status as an elder. It was his status that enabled him to kiss women on the lips when he greeted them at the Kingdom Hall. It was Tony Sewell’s status as an elder that gave authority to his request to Mrs B to act as a shoulder to cry on and help him through his depression. The rape itself occurred after the two couples had been out pioneering. By analogy with Lord Toulson’s reasoning in Mohamud, Mark Sewell had not ‘metaphorically taken off his uniform’. Furthermore, he had got it into his head that he needed to commit adultery in order to provide a religious ground for divorce from Mary.

For the Defendants, Ms Foster does not accept that the relationship between the Barry Congregation and either Mark Sewell or Tony Sewell was capable of giving rise to vicarious liability, so that the first stage of the test for vicarious liability was not satisfied. The tort was not committed as a result of any activity being undertaken by Mark Sewell on behalf of the Barry Congregation (or the worldwide organisation), but in the context of a personal friendship entered into by choice between Mr and Mrs B and Mark and Mary Sewell. Mark Sewell’s activities as a personal friend of Mr and Mrs B were not part of the ‘business activity’ of the Congregation. The Congregation did not assign Mark Sewell any role with respect to Mrs B that created the risk that he would attack Mrs B. Mark Sewell was not an elder when he met Mrs B and there was no evidence that their relationship was fostered by any of the activities he carried out as an elder or ministerial servant. Rather, the two couples had got to know each another through Mark Sewell’s and Mr B’s business interests and the relationship was fostered and developed through social visits and holidays which they went on together as friends.

At the second stage of the analysis, Ms Foster submits that Mark Sewell was not required by virtue of his position as an elder to enter into a friendship with Mrs B; nor was she required by her position as a member of the Congregation to be friends with him. The duties of an elder are limited to providing spiritual guidance in prescribed circumstances. There was no evidence that Mark Sewell was providing spiritual guidance to Mrs B at any material time. Scriptural teachings of which both Mark Sewell and Mrs B would have been aware specifically cautioned men against associating with women to whom they were not related on a confidential or intimate basis. Any request made by Tony Sewell could not have been reasonably construed by Mrs B as an instruction that she was religiously required to execute. At most, it was a request from a concerned father.

I have considered the two stages of the test for vicarious liability separately. At the first stage, the question is whether the relationship between the Defendants and Mark Sewell, one of their elders, was capable of giving rise to vicarious liability. The key questions, to adopt the formulation of Lord Reed in Cox, are (i) whether Mark Sewell carried on activities as an integral part of the ‘business’ activities carried on by the Defendants and for its benefit and (ii) whether the commission of the rape was a risk created by the Defendants by assigning those activities to Mark Sewell. To my mind, the answer to both questions is ‘Yes’.

To the first question, the answer is clear. Elders are the spiritual leaders of the congregation. To be appointed an elder a publisher must first have served as a ministerial servant and demonstrated that he is spiritually suitable to be an example to others. An elder may be removed if he fails to maintain the high standards expected of him, whether in performance of his duties as an elder or in his personal life. Elders are the principal conduit through which the teachings of the faith, as represented in Watchtower and other publications, are disseminated to congregations. Instructions from the worldwide organisation on matters such as the reporting of child abuse are addressed to them. Insofar as a congregation of Jehovah’s Witnesses acts as a body, it acts through its elders. An elder is as integral to the ‘business’ of a congregation of Jehovah’s Witnesses as a priest is to the ‘business’ of the Catholic Church.

All this is apparent from Mr Schofield’s evidence alone. However, it is consistent with the conclusion reached by Globe J in relation to ministerial servants. Although his conclusions rested on the evidence before him, the evidence before me was not materially different. I accept Mr Counsell’s submission that, if anything, the position in relation to elders is a fortiori.

The second question is whether the commission of the rape was a risk created by Barry Congregation by assigning those activities to Mark Sewell. I have concluded that the answer to this question is also ‘Yes’, for three reasons.

First, any organisation that confers on its leaders power and authority over others creates a risk that those leaders will abuse that power and authority. This is as true of a religious organisation as it is of a secular one. There is no doubt that the teachings of Jehovah’s Witnesses confer on elders (who are said to be appointed through the intermediation of Jehovah) considerable power and authority over other publishers, who are enjoined to be obedient and submissive to them, at least when their guidance does not conflict with the Bible.

Second, where an organisation makes rules for all aspects of its adherents’ lives, and sets its leaders up as moral and spiritual exemplars, it imbues those leaders with power and authority even outside the confines of their religious activities. The suggestion that publishers should reject instructions from elders that do not accord with Biblical teaching must be seen in light of the specific guidance that ‘a spirit of independent thinking does not prevail in God’s organisation, and we have sound reasons for confidence in the men taking the lead among us’, that ‘[t]he elders adhere to scriptural truth’ and that ‘we should not magnify [elders’] human imperfections’ (Watchtower, 15 September 1989, ‘Be Obedient to those Taking the Lead’, §13). An organisation that chooses to give advice of that kind creates a risk that its adherents will mistakenly follow the instructions they are given by elders, even if on a proper analysis they are contrary to the Biblical teaching.

Third, sexual abuse is almost always a form of abuse of power. Where (as here) the act of abuse involves physical violence, it will generally be enabled by the relatively greater physical power of the abuser compared to his victim. But acts of sexual abuse rarely happen out of the blue. Often, the perpetrator abuses his own power, or that of others, to engineer a situation in which the abuse can occur, i.e. to legitimate and enable what Longmore LJ in Maga called the ‘progressive stages of intimacy’. Any organisation that confers on its leaders power over others creates the risk that they will abuse it in that way.

This means that the relationship between the Defendants and Mark Sewell was capable in principle of giving rise to vicarious liability for acts of sexual abuse perpetrated by him on members of the congregation. Whether the particular act of sexual abuse at issue here, his rape of Mrs B on 30 April 1990, was sufficiently connected to his status as elder is, of course, a different question.

The question at stage two of the inquiry overlaps to some extent with the second question at stage one. It focuses, however, on the relationship between the tort committed by Mark Sewell and his position as elder.

This is a less straightforward case than Maga or A v Watchtower. There, it was the abusers’ status as a priest (in Maga) or ministerial servant (in A) that gave them

In the present case, the rape did not occur while Mark Sewell was performing any religious duty. But that is not a necessary ingredient of liability in cases of this kind. The test is more open-textured and requires an analysis of all aspects of the relationship between the tort and the abuser’s status. In this case, there are five relevant aspects.

First, Mr and Mrs B met Mark and Mary Sewell when Mark was a ministerial servant. I accept that the two couples began to associate in part because Mr and Mrs B perceived them, because of Mark’s position, to be of high standing in the community of Jehovah’s Witnesses. By associating with them, Mr and Mrs B were practising ‘good association’. Mr B also had aspirations to become a ministerial servant, which he did at the same time Mark Sewell became an elder. So, Mark Sewell’s status as an elder was one factor in the couple’s developing friendship. This would plainly not be enough on its own to justify holding the Defendants vicariously liable for Mark Sewell’s torts, but it is a piece of relevant context.

Second, another reason why the two couples continued to socialise was because they got on well. In particular, Mrs B found Mark Sewell charming and funny and she and Mr B enjoyed his and Mary’s company. But there came a time, probably in late 1989, when Mark Sewell began to cross boundaries and act inappropriately both towards Mary and towards Mrs B. I accept Mrs B’s evidence that one important reason why she tolerated this was because Mark Sewell was an elder. This meant both that Mrs B assumed that he would be acting from pure motives and that there could be repercussions if she were to call out his inappropriate behaviour. Mark Sewell’s ability to get away with inappropriate behaviour is illustrated by the lack of comment when he greeted women members of the congregation by kissing them on the lips. His own perception of the significance of his status can be seen from Mrs B’s evidence, which I accept, of his reaction when confronted by her about his sexual abuse of CXC: ‘He told us he could do what he liked because he was an elder and that he was not answerable to us.’

Third, the instruction from Tony Sewell, a senior elder, to Mr and Mrs B to act as confidants to Mark made it difficult to break off the friendship even after Mark’s behaviour became seriously concerning. Although Tony Sewell did not specifically say that Mrs B should act as confidante to Mark alone, he implied that by giving the example of his wife (who had confided in a male elder rather than her husband). I reject Ms Foster’s submission that, in giving the instruction Tony Sewell was acting qua Mark’s father, rather than qua elder. Such a distinction would be unreal in these circumstances, given that, as FXC said and I accept, the teachings of Jehovah’s Witnesses, and the authority of the elders, extended to all aspects of a publisher’s life, not just those concerned directly with evangelism and with religious services. It is relevant that Tony Sewell finished the meeting with a prayer, deliberately invoking Mrs B’s religious obligation to do what he had instructed. In giving his implied instruction to Mrs B to act as confidante to Mark, Tony Sewell had not, therefore, cast off the mantle of an elder; on the contrary, he had deliberately assumed it. The significance of the instruction was not undermined by the fact that it might conflict with the rule that men should not be alone with women to whom they were not related, because, as FXC said and I accept, elders were given more leeway than others in this regard and, by

Fourth, it is material that the rape occurred after Mr and Mrs B had been out pioneering – i.e. performing the central religious duty of Jehovah’s Witnesses. That is why Mr and Mrs B and Mark and Mary Sewell were together on the day when the rape occurred. It is also relevant that, as FXC said and I accept, Mark Sewell’s house was ‘an “approved” venue by the Barry Elders’; and that Mrs B went to the back room of that house, where the rape took place, because she had ‘decided to go to speak to Mark to convince him that he should go to the elders about his depression’ – in other words to convince him to fulfil what she regarded as his duty as one of Jehovah’s Witnesses and as an elder.

Fifth, on the basis of Mrs B’s evidence about what Mark Sewell said to Mr B, which I accept, I find that Mark Sewell had formed the belief that there had to be an act of adultery in order to generate scriptural grounds for him to divorce Mary. The idea of relying on a rape to legitimate a divorce was, of course, a perversion of the beliefs and teachings of Jehovah’s Witnesses, but on the evidence before me it appears to have played a part in Mark Sewell’s thinking at the time of the rape. The fact that, in his mind, rape was equivalent to adultery suggests a mindset in which he was entitled to act as he desired and Mrs B would or should submit to him. Such a mindset is utterly contrary to the teachings of Jehovah’s Witnesses, but the evidence establishes that his pathological beliefs about his own entitlement to exercise power over others were bound up with the position and status the Defendants had given him by appointing him as an elder.

Taking these features of the relationship together, the following conclusions can be drawn:

For all these reasons, the rape was in my judgment sufficiently closely connected to Mark Sewell’s and Tony Sewell’s positions as elders to make it just and reasonable that the Defendants should be held vicariously liable for it.

In the light of my conclusion on issue (b), the Defendants are liable to Mrs B for any damage that she can show was caused by the rape. There could in principle be an issue about the extent to which the psychiatric injuries suffered by Mrs B were attributable to the conduct of the investigation and hearing, rather than the rape. But that issue would arise only if it could be shown that the conduct of the investigation and hearing constituted an intervening event that broke the chain of causation. Ms Foster’s case did not suggest that they were. Any such suggestion would have been unattractive, given that it was the Defendants themselves who conducted the investigation and hearing. Logically, the Defendants’ conduct of these was either in breach of duty or not. If it was in breach of duty, the Defendants cannot pray it in aid to break the chain of causation: Clerk and Lindsell on Torts (22^nd ed.) §2-138. If not, the investigation and hearing, and any damage flowing from them, were natural and foreseeable consequences of the rape, for which Mark Sewell – and therefore, on my findings, the Defendants – were responsible.

This makes it unnecessary for me to decide the points in dispute under issue (c) and I do not do so. However, since I have heard argument on them, and in view of their wider importance, I make these observations.

There is no case law establishing that a religious organisation which chooses to investigate an allegation against one of its members owes a duty of care to a complainant not to cause her psychiatric harm. The question whether such a duty should be imposed therefore falls to be answered by applying the three-stage test in Caparo v Dickman [1990] 2 AC 605, bearing in mind the note of caution sounded by Brennan J in the High Court of Australia in Sutherland Shire Council v. Heyman (1985) 60 A.L.R. 1, 43-44 that:

At the first stage, I would readily accept that it is foreseeable that a rape or sexual assault complainant might suffer psychiatric damage as a result of the conduct of an investigation and/or hearing convened to determine her allegation. In Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512, at [125], Underhill LJ, with whom Davis and Patten LJJ agreed, held that it would be ‘exceptional’ for psychiatric injury suffered by an employee as a result of disciplinary proceedings brought against him by his employer to be foreseeable. The position of a complainant who claims that she has been raped or subjected to serious sexual assault is, however, unusual. Such a complainant, if she is telling the truth, will already have suffered what is likely to be a traumatic and humiliating violation at the hands of her attacker. Rape and serious sexual assault give rise to psychiatric injury in a significant proportion of cases. Any investigation and hearing conducted to determine whether the assault took place are likely to require the complainant to recall and relive the experience in a semi-public forum. Especially if mismanaged, the process affords opportunities for the humiliation caused by the attack to be repeated and magnified and for any psychiatric injury to be exacerbated. These basic facts are obvious and should have been so by the early 1990s, even bearing in mind that understanding of the effects of sexual assault has advanced in the intervening years.

These general conclusions can be tested by reference to FXC’s evidence about the investigation and hearing relating to CXC. On FXC’s evidence, CXC, a child who had disclosed that she had been repeatedly sexually abused over a long period by a relative who was also an elder, had to attend a meeting presided over by other elders at which she was required to read out her written account of what had happened to her in the presence of her abuser and his wife. At that meeting, her abuser was allowed to call wholly irrelevant evidence about her alleged relationship with boys in the congregation in an attempt to discredit and undermine her. CXC was then required to attend a judicial committee hearing before a panel of elders only to be told that her allegations (which were by that time already known to be denied by Mark Sewell) were not proven because of the two-witness rule, which was not satisfied because, as a child, she did not count as a witness at all. FXC describes the effect of this on CXC as ‘devastating’. Because her claim is not before me, I make no findings of fact about what happened in CXC’s case. But if what FXC says is true, she was subjected by the elders (admittedly with the consent of her parents) to an ordeal that was very likely to give rise to psychiatric injury – at least if the allegations she made against Mark Sewell were true, as they have subsequently been shown to be.

Turning to the second stage of the Caparo analysis, where the requirement of foreseeability is satisfied, the law has for some time recognised the existence of a duty of care owed by an employer not to cause foreseeable psychiatric harm to an employee who is subject to a disciplinary procedure: see e.g. Clerk & Lindsell on Torts (22^nd ed.) §8-87. The present situation is different in two respects: first, the Defendants are a religious organisation, not an employer; second, the alleged duty is owed to the complainant, not the person subject to disciplinary proceedings. It is difficult to see, however, that either of these two differences suggests a different result. The religious principles to which Jehovah’s Witnesses commit themselves cover all aspects of their life. The function of the elders was to act as ‘shepherds’ to the congregation. In investigating serious sin and in convening judicial committees to deal with it, they were performing a part of their ‘shepherding’ function for the benefit of the congregation as a whole, including the complainant. By deciding to conduct an investigation and hold a hearing in respect of a complaint of rape or serious sexual assault, rather than (for example) leaving it to the police, it can properly be said that they assumed the responsibility to undertake those activities in a way that did not give rise to foreseeable injury to the complainant. The required proximity is therefore present in the relationship between the Defendants and a complainant alleging rape or serious sexual assault.

The difficulty arises at the third stage of the Caparo analysis, which requires consideration of whether the imposition of liability in this case is fair, just and reasonable. That requires focus on any public policy reasons against imposing liability. Ms Foster argued that there were such reasons, because the imposition of the duty would require the court to determine questions which ought to be regarded as nonjusticiable religious matters.

At one stage, Mr Counsell submitted that the application by the judicial committee of the ‘two-witness rule’ was itself a breach of duty because the rule had been misapplied. A claim that the rule had been misapplied would, as it seems to me, stray very clearly into non-justiciable territory. Such a claim would inevitably require the court to inquire into the rule’s Biblical origins, i.e. to pronounce on the true interpretation of the words used by the writers of Matthew’s Gospel and the rule’s other Biblical sources. This is precisely what the Canadian Supreme Court was unwilling to do in Wall and what Warby J refused to do at [73(4)] of his judgment in Otuo. I consider that they were correct, for reasons of practicality and of principle. As to the former, the court is not by training equipped to engage in questions of disputed theological interpretation. As a matter of principle, any attempt to do so would be illegitimate because it would undermine the state’s neutrality between competing religious views.

The contention that the two-witness rule should not have been applied at all, which was also part of Mr Counsell’s submission at one stage, raises different and difficult issues. The appropriateness of the two-witness rule as applied by Jehovah’s Witnesses in Australia was considered by the Australian Royal Commission into Institutional Responses to Child Sexual Abuse. The Commission’s Case Study No. 29, The response of the Jehovah’s Witnesses and Watchtower and Tract Society of Australia Ltd to allegations of sexual abuse, was published in October 2016 under the chairmanship of the Hon. Justice Peter McClellan. At §7.3 of its report, the Commission recommended that the rule be changed, at least in the context of allegations of child sexual abuse. It said:

It is not obvious that a religious organisation which chooses, for scriptural reasons, to adopt a risky procedure for investigating and determining complaints should be held immune from liability when those risks eventuate simply because of the scriptural origin of the procedure. On the other hand, it must be borne in mind that the procedure’s ultimate function is to determine whether the person complained against may remain a member of the religious community or should be expelled from it. Any interference with an organisation’s right to determine for itself who should remain a member would, under Article 9 ECHR, have to be justified as proportionate to a legitimate aim. Moreover, at least when those involved are adults of full capacity, there is force in the argument that by becoming and remaining members of the organisation and/or by making a complaint, they accept that the complaint will be investigated and adjudicated according to the religious rules to which the group as a whole subscribes.

It could be said that, even if Mr Counsell’s criticisms of the two-witness are left aside, and that rule is treated as forming part of the framework within which the investigation and hearing had to be conducted, there was scope for the Defendants to take steps to ensure that the complainant did not suffer psychiatric damage as a result of the conduct of the investigation and hearing. Although the Defendants were clear that the twowitness rule was Biblically derived and could not be altered or modified, they did not say the same about every aspect of the way the investigation and hearing were conducted. Some aspects, such as the decision whether to convene a judicial committee hearing in a particular case and how to manage any such hearing, were matters for the discretion of the elders, applying the guidance given to them by the organisation.

But there are also policy arguments against the imposition of a limited duty of that kind. Such a duty might encourage the organisation not to investigate difficult cases, or not to hold hearings in such cases, so as to avoid risking psychiatric harm to the complainant. That has the potential to conflict with the duty to safeguard members of the congregation where there are known allegations of sexual assault or abuse (the duty established in Maga and applied by Globe J to Jehovah’s Witnesses in A) by discouraging action which might lead to the expulsion of the perpetrators.

In my judgment, it would be preferable for the balancing of these important considerations to be undertaken in a case where it matters to the outcome. Since I have reached the conclusion that it does not matter here, it would be better not to decide the point.

This means that it is also not necessary for me to make detailed factual findings about every aspect of the investigation and hearing. However, in case they become relevant on appeal, my findings on the essential points in dispute are as follows:

It is agreed that Mrs B suffers from recurrent depressive disorder (ICD-10 F33). Her psychiatric history can be summarised as follows. In 1984, after the birth of her second child, she suffered post-natal depression. This was apparently short-lived, as she never returned to see her GP about it. She then suffered further episodes of depression in 1991, 1993, 1994, 1996 and 2014.

Dr Roychowdhury and Prof. Maden agree in their joint report that ‘rape is a traumatic event that is likely to cause psychiatric injury in a person of average mental fortitude’. They agree that the rape in this case increased the chance that Mrs B would suffer a further episode of depression from 50% (the risk applicable to a patient who has suffered from one episode of depression in the past) to 70%. Prof. Maden accepted under cross-examination that the prior risk was probably somewhat less than 50% (because post-natal depression is less predictive of further episodes than other kinds of depression) and that Mrs B’s current risk of suffering a further episode is probably around 90% (because the risk increases with each subsequent episode and because the risk of depression increases with age).

Both experts agree that the causation of depression is multi-factorial. As a matter of law, what Mrs B has to show in respect of each psychiatric injury is that the rape materially contributed to it: see Clerk and Lindsell on Torts (22^nd ed.) §2-32 to 2-34. Dr Roychowdhury and Prof. Maden agree that the rape was directly or indirectly the major cause of the episodes of depression in 1991, 1993, 1994 and 2014. Dr Roychowdhury considers that the same is true of the episodes in 1996 and 2010. Prof. Maden disagrees about this, because the episode in 1996 coincided with the breakdown of Mrs B’s first marriage and the episode in 2010 coincided with breakdown of her second marriage and the illness and death of her father, events which – he says – are likely to have caused a depressive episode even had the rape not taken place.

This dispute is of narrow scope and has little bearing on the damages to which Mrs B is entitled. However, I have concluded that Dr Roychowdhury’s analysis is to be preferred to Prof. Maden’s. Events such as the break-up of a relationship and the death of a parent are common triggers for depression, but a person’s resilience to events such as these types of events may be affected by her pre-existing psychological state. In this case, given the agreed position that the rape materially increased Mrs B’s vulnerability to further episodes of depression, and given the difficulty of separating the factors applicable to any particular episode, logic supports Dr Roychowdhury’s view that the rape made Mrs B less resilient to other life events and therefore contributed materially to each of the subsequent episodes. Having heard Mrs B’s evidence, I also accept that the rape was instrumental in her decision to leave the Jehovah’s Witness community, which precipitated the break-up of her first marriage, and contributed to the emotional

There was also initially a dispute about whether the symptoms Mrs B experienced in 2014 – before, during and after Mark Sewell’s trial – could support a diagnosis of PTSD. Dr Roychowdhury said that they could. Prof. Maden initially thought not. However, after hearing Mrs B and Dr Roychowdhury give evidence, he accepted that the symptoms described (which included flashbacks, intrusive memories, avoidance behaviour, emotional blunting and hypervigilance) made a diagnosis of PTSD appropriate, if the court accepted that Mrs B had in fact suffered those symptoms. I accept that Mrs B gave accurate evidence about the symptoms she had suffered. It follows that there is no dispute between the experts that a diagnosis of PTSD was appropriate.

Neither Dr Roychowdhury nor Prof. Maden suggested that it was possible to assess whether or if so to what extent the injuries were attributable to the investigation and hearing, rather than the rape itself. In my view, this does not matter because, even if the injuries can be said to have arisen from the investigation and hearing, these were themselves either natural sequelae of the rape or matters which do not break the chain of causation. Either way, the Defendants are responsible for them: see paragraph 175 above.

I accordingly conclude that the episodes of depression suffered by Mrs B in 1991, 1993, 1994, 1996, 2010 and 2014 were all attributable (in the relevant sense) to the rape, as was the PTSD suffered in 2014, some of the symptoms of which have continued to date.

I deal here with the matters in dispute on which I heard submissions. I hope that the parties will then be able to agree an order, reflecting my findings on these disputed issues and those elements of the claim that are not disputed. If there remain any items in dispute I will decide them on the basis of written submissions. General damages for pain, suffering and loss of amenity 197 Mrs B describes her current symptoms as follows:

The dispute between Dr Roychowdhury and Prof. Maden about the severity of Mrs B’s depressive episodes was, again, narrow. Prof. Maden’s view was that Mrs B never suffered an episode in which her depression was more than mild. Dr Roychowdhury considered that at least two episodes should be seen as of moderate severity.

Prof. Maden’s view was based in part on his view that Mrs B was exaggerating her symptoms in the account she had given to him. That in turn was based on a comparison of what she said in evidence with what was documented in the medical and other records. In some cases – for example, on the question of her return to work in 2014 – the documentary evidence gave a false picture, because it suggested that she had been able to return to work immediately after the conclusion of the trial. In fact, it became clear in evidence that although she had returned to work briefly, she had been unable to continue for more than about a week. More generally, I consider that in her evidence to the court Mrs B gave an accurate picture of her symptoms and was not exaggerating. These factors, together with the results of the PHQ-9 questionnaire administered in 2012, suggest that Dr Roychowdhury was correct to say that at least two episodes could appropriately be regarded as moderate.

Translating a medical diagnosis into an award for pain, suffering and loss of amenity is not a precise exercise, particularly in a sexual assault case. I have had regard to the

The inclusion of a separate category would be consistent with a recommendation of the Independent Inquiry into Child Sexual Abuse in its Accountability and Reparations report, published on 19 September 2019 for a new ‘freestanding section’ in the Guidelines for cases of child sexual abuse. Such a category was said to be desirable so as to take into account:

At present, however, the Guidelines have not been amended. The preamble to Chapter 4 includes the following:

Mr Counsell submits that Mrs B’s injuries fall into the ‘moderately severe’ bracket for psychiatric damage generally ((A)(b)) and also into the ‘moderately severe’ bracket for PTSD ((B)(b)). He invites me to make an award both for depression and for PTSD, which he submits are ‘two separate psychiatric injuries’, albeit he concedes it would be ‘wrong simply to aggregate whatever figure the Court arrives at for each bracket’. He submitted that £75,000 was the appropriate figure. In addition, he submitted there should be an award of aggravated damages to mark the violation and humiliation suffered by Mrs B and the disgraceful way Mark Sewell denied the rape. He suggested an additional award of £25,000 under this head.

Ms Foster agreed that the award should fall within the ‘moderately severe’ bracket and submitted that there should be a global award reflecting the entire injury suffered. This was not a case where it could be said that there were two separate injuries. The award should take account of the fact that the injury was deliberately inflicted and of all the circumstances, so that a separate award for aggravated damages was not appropriate. Overall, Ms Foster suggested that a figure of £50,000 would be appropriate.

In my judgment, it would be wrong in principle to regard the recurrent depressive disorder and PTSD as two separate injuries. As the preamble to Chapter 4 of the Guidelines makes clear, they are properly regarded as part and parcel of the total psychiatric injury suffered and fall to be assessed under part (A) of the guideline. Looking at the symptoms alone, the appropriate category would be (A)(b) (£17,900 to £51,460). In my judgment, without considering any element of aggravated damages, they would be nearer the top than the bottom of that category, given in particular the duration of the symptoms and their effect of Mrs B’s depressive symptoms on her relationships with her first and second husband, the presence of PTSD in 2014 (impacting on all aspects of her life), the persistence of some of the symptoms of PTSD afterwards and the very high chance of recurrence.

I have considered the comparator awards relied upon by Mr Counsell in his Appendix 2. Those were cases where the assaults or abuse were more prolonged than the single instance of rape in Mrs B’s case. On the other hand, there were in my judgment five factors justifying an award substantially higher than would be justified if the symptoms had arisen from (for example) a negligently caused injury. (Whether this is characterised as an award of aggravated damages, as the Guidelines suggest may be appropriate, or as compensation for the degradation and humiliation suffered – the approach preferred by the Court of Appeal in Richardson v Howie [2004] EWCA Civ 1127 – does not seem to me to matter.) First, Mark Sewell was a manipulative bully who used his position as an elder to engineer the situation in which the rape could take place. The rape itself was a gross abuse of the trust which Mrs B placed in him as an elder and as a friend. Second, Mark Sewell then compounded the violation by denying the rape, which meant that Mrs B felt obliged to give evidence against him at the judicial committee hearing in circumstances where he was shielded from an adverse finding by the two witness-rule. This magnified the degradation and humiliation caused by the initial attack. Third, Mark Sewell’s denial also led to the judicial committee concluding falsely that this was a case of ‘wife-swapping’, which was yet a further humiliation for Mrs B, because of the moral opprobrium which that attracts in the religious community within which Mrs B then spent most of her life. Mrs B suffered an extreme but entirely understandable reaction to this. Fourth, the experience of not being believed by the elders (for which Mark Sewell and the Defendants were responsible) also led her to think that she would not be believed if she went to the police. That drew out to more than 20 years the period before the matter was properly investigated. Fifth,

Overall, I consider that the appropriate award is £62,000. If it were necessary to make separate awards for the psychiatric injury and for aggravated damages I would apportion £40,000 to the former and £22,000 to the latter.

As it was presented to me, Mrs B’s claim for loss of earnings was based on a contention that, but for the psychiatric injuries attributable to the rape, she would have retrained and become a teacher. She bases that claim on a comment made to her headteacher by a school inspector who observed her working as a teaching assistant. She had never previously thought she had the ability to become a teacher but has thought of it often since.

The difficulty with this part of Mrs B’s claim is that, on her own evidence, had it not been for the rape, she would have remained one of Jehovah’s Witnesses, probably until 2009. The significance of that date, she says, is that some Jehovah’s Witnesses believed that Armageddon would occur in that year; and when it did not, many (including friends of hers) became disillusioned and left the organisation. Mrs B was clear that, while she remained one of Jehovah’s Witnesses, she would not have taken full-time employment and would not have become a teacher. This means that, on her own case, Mrs B would not have even considered becoming a teacher until 2009 at the earliest. By that time, Mrs B was 49 years old. She was not (and is not) a graduate. To become a teacher she would have needed to acquire a degree or equivalent and a post-graduate teaching qualification. In principle, she could have combined part-time study with employment (possibly as a teaching assistant). But even if she had done so, and had been successful in obtaining the necessary qualification, she would then have needed to obtain employment. By this time, she would have been well into her 50s and would be in competition with other newly qualified teachers.

It is never too late to retrain and I very much hope that, if Mrs B still wishes to become a teacher, she is not dissuaded by anything I say here from seeking to do so. For what it is worth, it is my impression that she is both intelligent and capable and the school inspector’s comment is some evidence that she has some of the skills required. The claim she has made, however, would require a factual finding that, but for the rape, she would already have sought to obtain a degree or equivalent, a postgraduate teaching qualification and employment and that she would have succeeded in all three respects. Given her financial position, she would have had to all this while working. There is no evidence before me on the basis of which I could properly find that it was likely that she would have done any of these things, let alone all. This part of Mrs B’s claim is, therefore, at best speculative. I therefore reject Mrs B’s claims for compensation for both past and future loss of earnings insofar as they are based on the contention that, but for the rape, she would have become a teacher.

In respect of past loss of earnings, Mr Counsell accepts that the number of

In the schedule of loss, it was said that a Blamire award could be made

The difficulty with this contention, which was in any event not positively advanced by Mr Counsell in submissions, is that there was no evidence from Mrs B or otherwise to support it. Mrs B gave detailed evidence, which I accept, on the effect of the rape and the psychiatric injuries it caused on her personal life, but she did not suggest any similar effect on her ability to work, which she continued to do, with some breaks, sometimes on a full-time and sometimes on a part-time basis. Insofar as she changed jobs, or altered the pattern of her work, she explains this by reference to other events in her life (e.g. the move to Cyprus in 1998 with the man who was to become her second husband, the move back to Cardiff and birth of her second daughter in 1999, the move to Cornwall after her father’s stroke in 2005, the move back to Barry in 2007 to be close to her first daughter, the move to Bridgend in 2014 and the move back to Barry in 2016 to be nearer to her sister and children). She is now working in a full-time position as a receptionist in a care facility. Although Mrs B had to take 6 months off work in 2014, before and during Mark Sewell’s trial, she received full pay during this period. Taking all of this into account, I am not satisfied that, but for the rape, Mrs B would have been more remuneratively employed.

Finally, Mr Counsell submits that there should be an award to compensate Mrs B for the handicap which her injuries will cause her in future in the labour market, applying the principle in Smith v Manchester [1974] EWCA Civ 6. The making of such an award requires the court to be satisfied: first, that there is a ‘real’ or ‘substantial’ risk that the claimant will lose her current job before the estimated end of her working life; and second, that the claimant will suffer financial disadvantage if that risk materialises, having regard to the factors (both favourable and unfavourable) which in a particular case will affect her chances of getting another equally well paid job: see Moeliker v A Reyrolle & Co. Ltd [1977] 1 WLR 132, 142A (Browne LJ).

Even if there were a risk that Mrs B might lose her present employment, her employment history demonstrates that she has had little difficulty securing employment despite her ongoing recurrent depressive illness. I would not, without clear evidence, conclude that a history of such illness would in and of itself be likely to dissuade potential employers from offering employment. The period of 6 months spent out of

For these reasons:

There will, therefore, be judgment for the Claimant in an amount to be assessed following discussion between the parties and, if necessary, short, written submissions on any remaining disputed issues.