Issue 13 April 2007

ASSOCIATION OF CHILD ABUSE LAWYERS

SPECIAL POINTS OF INTEREST:

• A useful limitation update from Peter Limitation Campaign Update by Peter Garsden Garsden

• David Greenwood gives the mem- bership a protocol This article is the third assault, and bring it In the last article I which succeeds to be published in the into line with the rule anticipated there was

• Peter Garsden ACAL newsletter and in negligence (3 years a possibility of the shows in his letter follows Jonathan extendable). draft bill getting into to the Dept for Cons Wheeler’s first the Queens Speech by Affairs that things article in November October 2006. can be done 2005, and my later Despite assurances • Richard Scorer article in March 2006. given by the gives us his view on various important This article provides Department of cases an update of Constitutional Affairs developments over the this did not happen. • Alan Collins gives a helpful report on last year. Young v Cahotlic Care For those who have not followed It also redefines developments to date, Mental capacity in line we are lobbying with the new Mental INSIDE THIS parliament to bring Capacity Act 2007. ISSUE: into force a change in Links to the Law the law of limitation as Commission Limitation Campaign 3 recommended by the report and draft bill Update Law Commission as are on line within the Informal Protocol for long ago as 2001, and members section of the 4 Child Abuse Claims following adverse ACAL site, if you follow comments by the this link Limitation Lobby Letter 6 European Court in Stubbings v Webb. http://www. childabuselawyers. Case Report— 8 Middleborough Effectively the act will com/Members/ abolish the time limit LegalMiscellaneous. Case Report—Leeds of 6 years in cases of htm. 10 Diocese

Case Report—C v G 12

Case Report —Young v 14 Catholic Care Issue 13 Page 2

A NOTE FROM THE CO-ORDINATOR

is also news on ACAL’s lob- Welcome to another year for members. However the con- bying of the government on ACAL. At present we await ference business is a com- limitation law and an article the decision of the House of petitive one and we had to on Young v Catholic Care by Lords in A v Ioworth Hoare pull out before we incurred Alan Collins. Thank you to and other cases. The latest further loss. all our contributors. news from Jonathan Wheeler of Messrs Bolt Bur- Onwards and upwards. Malcolm Johnson— don Kemp is that the case is From this year our Co- Co-ordinator unlikely to be heard by the ordinator, Malcolm Johnson House of Lords before No- & Co. will be producing our vember 2007. In the mean- bi-annual newsletter and I time, the case of Young ver- hope that you like the for- sus Catholic Care and the mat. Our website, managed Home Office is seeking per- by Abney Garsden McDon- mission to appeal to the ald continues to be a much House of Lords. needed source of education and information. We will Regrettably ACAL had to continue to host our training cancel its conference at programmes and in the Highgate House which had meantime, enquiries are been postponed due to lack coming in steadily from vic- of numbers. The idea behind tims of abuse.

the conference was to pro- In this edition we have a mote the name of ACAL and limitation update from Peter reach out to those profes- Garsden, and a suggested sionals whose mistakes pre action protocol drafted mean a Letter of Claim from by David Greenwood. There one of our solicitor Issue 13 Page 3

Limitation Campaign Update by Peter Garsden Cont’d Events overtook us by the London to which you are all tre. The more publicity, decision given in Young v invited. Plans have not yet however, there is about child Catholic Care and the Home been finalised, but we are abuse the less the Claimants Office in the Court of hoping to have the support can argue that they do not Appeal, closely followed by A of Joe Benton MP (Bootle have B and Others v Nugent Care Merseyside). knowledge either Society in which Judges subjectively or construc- expressed exasperation at The provisional plan is:- tively. The their hands being tied by the further ahead in time we go Limitation Act 1980, and 1.Visit to 10 Downing Street the more difficult historic emphasis upon an to hand over the petitions. claims from the 50s and 60s objective test for date of are likely to become. David knowledge. I will not go into 2.A press conference. A de- Greenwood will agree that a debate on the subject as bate in a committee room of increased reliance upon ex- this will be covered by other the House of Commons, to pert evidence, and what is articles. which MPs will be invited in reasonable, is the key to order to raise the profile and success in this area. The three test claimants in importance of not only child the North West child abuse abuse, but the problem This article does not go into group action who went to St. caused by the Limitation Act any detail as to what the Aidans are connected with and state of the law. new act will change. Its the male rape support group most important Fire and Ice Liverpool. They You are all no doubt aware benefit is to indirectly make were very anxious to draw that various cases (X and Y liability much easier to prove attention to the v Islington because we will be able to inadequacies of the law, and Borough Council, Iowarth use help us fight for changes. I Hoare, and Young) are likely Vicarious Liability for acts of understand there is a simi- to go before the House of assault when suing lar support group, which Lords in the autumn of this institutional Defendants. has been formed by the year. Since our campaign The days of having to show survivors of the group led by will be based upon bringing consistent Kevin Young in the York- into force a new Limitation failings in systems of man- shire group action. Statute it will not conflict agement and negligence will with the appeals, but will hopefully disappear. It appears that in view of the add welcome political anger felt by abuse victims support and pressure indi- © Peter Garsden Vice Presi- there will be a further public rectly upon the appellate dent ACAL (Association of consultation in the Spring courts. Child Abuse Lawyers). about the bill. I have replied indicating concern at Finally, it is not surprising [email protected] further delays. I have not that the attached my reply, but can pendulum has swung from www.abneys.co.uk provide it to any member being in favour of the Claim- who would like to email me ants (Lister v Hesley Hall at: [email protected]. Ltd, Bryn Alyn) to being in favour of the Defendants In any event various online (Young). At the moment petitions have been created Limitation law is as biased on the back of the ACAL pe- against Claimants as it can tition, which now has over be. I feel it is 600 signatures. In total we inevitable that the pendu- estimate we have over 1000 lum will swing back towards signatures nationwide. We the Claimants, and hopefully are planning a day down in arrive somewhere in the cen- Issue 13 Page 4

Child Abuse Claims Informal Protocol thority with management and redacted within 6 months of the The Protocol control thereof; notification of claim. g. Details of the said homes it is

alleged that sexual and/or The proposed Defendants will con- The purpose of this protocol is to physical abuse is alleged to sider the disclosure of any further encourage open disclosure of evi- have occurred, together with information in their possession or dence and documents dates of residency. control which would ultimately be between the Claimants and the pro- h. In so far as the home is discloseable in civil posed Defendants with a view to m a n a g e d a n d / o r proceedings and will disclose such resolving the cases and in any event controlled by an authority or documentation within 6 months narrowing and other than the Defendant state of the notification of claim. defining the issues. if a claim has been intimated

providing, all relevant docu- The protocol is entered into in an Medical Evidence mentation in respect thereof. attempt to deal with the cases with- i. Provide as much detail as pos- out the expense of proceedings and The parties shall be free to sible of the alleged abuse to the promotion of settlement of instruct medical experts of their include the names of abuser claims. choice. (s), where known and the na-

ture and frequency of The protocol will apply to The parties will consider joint in- the alleged abuse; individual cases where a struction of an agreed expert. j. State whether or not the notification of claim is served on the Claimant has been In- proposed Defendant of it’s solicitor. Where medical evidence has not yet terviewed by the Police in rela- The proposed been provided the claimant’s solici- tion to any enquires or com- Defendant has 28 days from the tor will disclose the plaints and whether any state- date of service of the report within six weeks of ment has been given to the notification of claim to object to the receipt. Police. operation of the k. State whether or not a pay- protocol in an individual case. General Disclosure ment has been made by the Unless such notification is CICA, and/or is pending; received the protocol will The proposed Defendants shall l. Details of funding ar- operate as below. within 6 months of a request pro- rangements; vide the Claimant’s solicitor with a

Either party may withdraw from the list of relevant The Claimant’s solicitor shall pro- protocol by giving 4 months’ written documents which survive in vide as much of the notice. The timescale allowed by relation to homes named in the re- following information to the pro- this quest. Where proposed posed Defendant as possible within protocol may be varied to take ac- Defendants know that 3 months of service of the notifica- count of the numbers of claimants documents no longer survive details tion of claim :- to whom this of their destruction or disappear-

arrangement applies. ance so far as a. Copy letters of authority for possible will be provided by the pro- disclosure of education posed Defendants in writing in the Exchange of Information and social care records in the same timescale. possession of the Defendant.

The Claimant’s Solicitor will provide b. Police statements. the proposed c. GP records. Settlement Meeting Defendant with the details below d. Hospital records. within 56 days of e. Care and social services re- The Claimants solicitor and the pro- notification of the claim:- cords. posed Defendants a. f. Prison records including wel- solicitors will hold a face to face b. Full name (including sur- fare, parole and medical meeting to discuss the name at birth or any other records. potential settlement of claims or the name by which the claimant g. Probation records. identification of has ever been known if differ- h. DWP records remaining areas dispute. ent); i. Certificates of conviction c. Details of all addresses at j. Employment The meeting will be used to plan the which the claimant has re- k. School and education re- future conduct of claims, further sided with his/her par- cords. potential meetings if necessary, the ents, foster parents or other l. National insurance re- issue of carers; cords. proceedings (if appropriate), a pos- d. Date of Birth; sible Group Litigation Order and e. National Insurance Num- Where the proposed other appropriate issues. ber; Defendants maintained or have f. Names of all care es- possession or control of a Claim- tablishments at which the ant’s personal files and/or social Claimant has resided irrespec- services/educational files these files tive of whether or not abuse is will be claimed, together with released to the Claimant’s details of the responsible au- solicitor appropriately Issue 13 Page 5

Child Abuse Claims Informal Protocol Cont’d Limitation

Once a notification of claim has been served a limitation freeze will operate to suspend any applicable limitation period such freeze to be determinable on the proposed Defendant giving 4 months’ notice.

Costs

Costs shall include fees, charges disbursements, and expenses and remuneration and, in relation to proceedings (including assessment proceedings), also include references to costs of or incidental to those proceedings.

Any order for costs payable by a person in receipt of public funding shall not be enforced without the permission of the Court.

Subject to an exceptional Order of the Court, on Acceptance by a Claimant of money paid into Court or of any sum paid by the proposed Defendant by way of settlement of a Claimant’s claim or on judgement being obtained by any Claimant against the proposed Defendant the Claimant shall be entitled to have paid by the proposed Defendant the costs and disbursements arising in his individual case to be subject to detailed assessment if not agreed.

“Common costs” are those costs incurred in disposing of common issues of fact or law and relating to all matters arising from the investigations, preparation of statements of case, preparation for trial and trial of liti- gation or as may otherwise be recoverable pursuant to the Civil Procedure Rules, and the costs incurred in the selection and trial of any lead claim (s) but excluding any costs referable solely to the claim of an individual Claimant.

Common costs relation to the nego- tiation and operation of the Protocol excluding work undertaken in rela- tion to individual cases will be pay- able on the basis that they will be divided among the claimant in pro- portions according to the length of time the individual claim has been managed within the protocol.

Issue 13 Page 6

LIMITATION LOBBY LETTER SENT TO THE DEPARTMENT OF CONSITUTIONAL AFFAIRS—BY PETER GARSDEN 18 December 2006 chance – bumped into his The unsatisfactory abuser in 1996 and as a re- Dear Madam, nature of the law has been sult became profoundly ill. graphically It triggered off very severe Re: Limitation of Illustrated by the recent psychological symptoms Actions (Law Com 270) case of Catholic Care & The obliging him to give up work Home Office v Young and descend into depres- You may recall having [2006] EWCA Civ.1534, in sion. Clearly the claimant in received correspondence which judgment was handed this case was not in a fit from the above organisation down on the 14th November state to consider about the Government’s 2006. This case involved a compensation. It was only plans to implement the man who had been abused after a police investigation in recommendations of the Law severely whilst in care 2001, after being advised to Commission’s 2001 Report – homes and an approved take legal advice, that the Limitation of school many years ago. He claimant decided to issue Actions (Law Com 270) and had co-operated with a Proceedings. The Claim the campaign to change the police investigation and Form was not lodged until law for the benefit, princi- assisted in securing the 2003. pally, of the survivors of conviction of 2 paedophiles. child abuse from many years After the trial was over, he The Court of Appeal decided ago. commenced legal that by this time he was out proceedings for of time and should have is- I need to draw to your compensation against the sued legal proceedings attention very worrying owners of the institutions within 3 years of him bump- developments in the where he was abused. He ing into his abuser, namely Common Law which have lost on time issues. 1999. highlighted much more graphically the The Court found that the The decision appeared to ig- inadequacies of the present Limitation Act was nore the views of the medical present Limitation Act 1980. unsatisfactory in that it expert in the case who said Details appear below. obliged the Judges to apply that many child abuse vic- an objective test of when tims would not have been in When you last wrote to me they thought “a reasonable a position to turn their mind you indicated that the work man in the circumstances of to litigation when they were on the draft bill would be the claimant would so ill. completed by the end of reasonably turn his mind to 2005, but there were ques- litigation”. They went on to As an Association, we are tions relating to other areas conclude that the more seri- very worried about this of law that needed to be ous the injury, albeit men- decision. Undoubtedly completed before the bill tal, the greater the obligation research shows that child could be passed to Parlia- on the claimant to issue abuse claimants are ment and put in the Queen’s legal proceedings. The inhibited from doing speech. Court clearly found that anything about their abuse they were bound by not only in the past for fear of: I was very disappointed to the Limitation Act, but also note that this bill did not ap- an early decision of the a. Retribution from the pear in the Queen’s speech House of Lords called abuser, published recently in No- Adams v Bracknell b. Not being believed and vember 2006. Would you Forest [2004] even though poor self image, please let us know what the precedent case involved c. The disclosing of the plans the Department of dyslexia rather than child memories will be too Constitutional Affairs has for abuse. painful for them. changes to the law, which has now become of the In the present case, the utmost importance. Claimant – completely by Issue 13 Page 7

LIMITATION LOBBY LETTER SENT TO THE DEPARTMENT OF CONSITUTIONAL AFFAIRS—BY PETER GARSDEN CONT’D Solicitors have been Accordingly, it is absolutely involved. This Group has We enclose copies of the essential that the law been running for 10 years relevant Judgments for your recognises the sensitivities and has been contested perusal. It is graphically of each child abuse survivor every inch of the way. This clear that the need for a and does not lump them case, although at first change in Limitation Law together as the “reasonable instance in the High Court, has become even more acute behaviour of the victim of interprets the Young Case than previously. Something child abuse who has against 2 out of 3 claimants must be done to protect the suffered the degree of injury in a way, which denies them rights of some of the most suffered by the claimant in the respect for their disadvantaged members of question and of which he subjective feelings. We at- our society. has knowledge”. Clearly all tach the Judgment in the child abuse claimants are test cases and refer you to Will you please address your different and require the the comments of the Hon. mind to this issue as soon respect demanded for their Mr Justice Holland at para- as possible and let us know feelings, which the present graph 6 when he says: when something will be done law does not permit in a to implement the new proper manner. “The legislative history lead- recommended draft ing to the enactment of Limitation Bill. If one reviews the Section 14…..was designed authorities, starting with to counter the We look forward to hearing Stubbins v Webb [1992] QB injustice…..familiarly arising from you as soon as possi- 197, in which clearly the with tortious xposure to as- ble. feelings and subjective bestos…… The terms of the opinion of the claimant was section are so obviously apt Yours faithfully, recognised, this subjective/ to deal with the relatively objective test was followed in sudden onset of significant the Bryn Alyn Court of injury….to turn from Appeal decision (KR & Oth- asbestos cases to sexual Abney Garsden McDonald ers v Bryn Alyn [2003] abuse cases with their often EWCA Civ. 85), which significantly different post permitted much more tort histories and reliance flexibility and sympathy to upon Section 14 inevitably be given to the survivors of raises serious issues, child abuse. Unfortunately factual and forensic”. the Court of Appeal, in the present case, decided that The Judge went on to apolo- they could not follow the gise to the Claimants for the “Bryn Alyn test” because of inadequacies of the law stat- the Adams v Bracknell For- ing: est decision. “Essentially, anyone seeking In the Court of Appeal, the in or after 1997 to claim Judges clearly recognised damages for sexual abuse the inadequacies of the experienced in the 1960s present law but felt bound and 1970s by way of an ac- by it. tion in negligence has, not surprising, formidable The inadequacy of the Law forensic hurdles to of Limitation has more re- surmount, not helped by the cently been illustrated by 3 absence of any specifically test cases in a Group Action tailored Limitation statute. with which Abney Garsden …… of course I am sorry for McDonald Messrs. P J Mc and JB” Issue 13 Page 8

H – v – TRUSTEES OF THE MIDDLESBROUGH DIOCESAN TRUST CLAIM FOR DAMAGES AGAINST A ROMAN CATHOLIC DIOCESE FOR PERSONAL INJURIES CAUSED BY CHILD ABUSE. Case Report submitted by Richard Scorer

mother discovered a ‘love letter’ Norway, where the Claimant’s For the Claimant: written by Dunn to the father was already working. Claimant. The letter said such Dunn continued to pester the Elizabeth Anne Gumbel QC & things as ‘I feel you in my Claimant with letters but they Justin Levinson of 1 Crown water’, indicating that Dunn had no further face to face Office Row had strong and bizarre feelings contact. instructed by Richard Scorer, for the claimant. The Claimant’s Pannone LLP mother was disgusted and There was no further discussion horrified. She did not discuss of Dunn within the Claimant’s For the Defendant: the letter with the Claimant, or family or by the Claimant to even tell him that she was anyone else. In the early Nick Fewtrill of 18 St John aware of it. She showed the 1990’s, following his marriage, Street, Manchester instructed letter to a friend, who advised the Claimant briefly mentioned by Jason Spencer, Hill Dickin- her to complain to the church. the abuse to his wife, but did son The Claimant’s mother visited not discuss it in detail. the senior priest of the local Case Report submitted by church, a Monsignor Carroll, to Over the course of his career in Richard Scorer. As this case in- express her horror. Carroll was financial services the Claimant volves child sexual abuse, the Dunn’s immediate supervisor. suffered Intermittently from claimant’s name has been depression and mistrust of anonymised. The Claimant’s mother asked authority. He accepted a that Dunn be moved to a promotion but was unable to The Claimant, who was aged 43 different parish. This request continue with it. From time to at the date of commencement of was ignored. time he drank heavily. In 2004 proceedings, brought a claim Subsequently Dunn confronted the Claimant’s wife was for damages against the Roman the Claimant’s mother at the shopping in the supermarket Catholic Diocese of church, saying ‘how could you and noticed on sale, an Middlesbrough in respect of do this to me?’ autobiographical account by a psychiatric injury caused by victim of abuse by a priest. sexual abuse which he At this time, notwithstanding suffered in 1975-1976. At the the contents of the ‘love letter’, For some years the Claimant’s time of the abuse the Claimant the Claimant’s mother wife had harboured suspicions was aged 13 – 14. The perceived the issue as being the that the abuse had caused the perpetrator of the abuse was amount of time which the Claimant emotional damage, Father Michael Dunn a Priest of Claimant was spending with but she had not discussed the Defendant. In October Dunn. She did not perceive these with the Claimant. She 2004 following disclosure by the sexual abuse as such, but purchased the book for the Claimant, Father Dunn pleaded thought that Dunn was trying Claimant who read it and found guilty to three counts of to entrap her son into a ‘cult that doing so made him realise indecent assault against the like’ existence. he was not alone. The Claimant and was sentenced to Claimant started to understand a term of imprisonment. Despite the mother’s for the first time that some of complaints, the Claimant his adult problems were The abuse started in or around continued to see Dunn and the connected with abuse in Autumn 1975. The Claimant sexual abuse continued. childhood. came from a devout Catholic Accordingly the Claimant’s family and all his family were mother went directly to see the The Claimant contacted his involved with the local Church. then Bishop of Middlesbrough, solicitor in late 2004 for legal Dunn was a charismatic junior Bishop Maclean. In June and advice and was advised to priest. The Claimant started to October 1976 respectively she report his allegations to the spend an increasing amount of had two meetings with Bishop police. The allegations having time with Dunn and suffered Maclean in which she contin- been reported Dunn was sexual abuse consisting of ued to express her horror at arrested and charged. Dunn indecent assaults (gross Dunn’s continued involvement pleaded guilty to indecent indecency falling short of with the Claimant, and asked assaults of the claimant and buggery), which took place in that Dunn be removed to a was sentenced to a term of secret. different parish. Again these imprisonment. requests were ignored. on the Claimant’s mothers In March 1976, approximately repeated complaints in 1976. some 6 months after the abuse In December 1976 the Claimant had started the Claimant’s and his family left to live in Issue 13 Page 9

H – v – TRUSTEES OF THE MIDDLESBROUGH DIOCESAN TRUST CLAIM FOR DAMAGES AGAINST A ROMAN CATHOLIC DIOCESE FOR PERSONAL INJURIES CAUSED BY CHILD ABUSE CONT’D benefit of treatment at that time Arguments on liability and achieved ‘closure’ many This reflected that the Claimant had strong evidence of The Claimant pleaded that the years earlier than he in fact did. negligence and would probably Defendant was vicariously liable The Defendant argued that have succeeded on limitation, for assaults committed by such was the state of but that the defendant would Dunn although following knowledge of child abuse in not have been found liable in exchange of pleadings it was 1976, that they could not respect of the whole period of conceded that this cause of reasonably have known or abuse, only that part of it action was no longer arguable suspected the abuse, even postdating (at the earliest) the for limitation reasons given the following the mother’s mother’s first decision of the House of Lords complaints. complaint. in Stubbings – v – Webb as confirmed by the Court of Arguments on limitation The Claimant was represented Appeal in Various Claimants – under a Conditional Fee v – Bryn Alyn 2003. The Claim- The Claimant’s case was that Agreement. ant also pleaded that the Defen- his date of knowledge (in dant was liable in negligence, accordance with the Bryn Alyn having failed to act on the decision) was October 2004 at Claimant’s mothers the earliest. It was argued that repeated complaints in 1976. only after reading the autobiographical account of an- On the case in negligence the other abuse sufferer, Defendants would be liable purchased for him by his wife, from March 1976 onwards at did he start to understand how the earliest. They would not be the abuse had affected him as liable for the abuse prior to the an adult. Also, he was unaware complaint. The issue then until 2004 that his mother had would be what the outcome complained to the church about would have been had the abuse Dunn’s closeness to him, so it come to light in or around was argued that the claimant March 1976. It was the did not acquire requisite Claimant’s case that the knowledge until that time. Claimant would have had the benefit of treatment at that time The Defendant’s case was that and achieved ‘closure’ many the Claimant’s date of years earlier than he in fact did. knowledge was when the abuse was occurring. The Defendant The Defendant argued that also contended that, if out of such was the state of time, the knowledge of child abuse in claimant should not have the 1976, that they could not benefit of the court’s discretion reasonably have known or under s 33 suspected the abuse, even Limitation Act 1980. The following the mother’s defendant complaints. highlighted that Monsignor Carroll died in 1995 and Bishop On the case in negligence the Maclean died in 1978. Defendants would be liable from March 1976 Whilst the claimant’s mother onwards at the earliest. They (and another would not be liable for the witness, a friend to whom she abuse prior to the spoke about it in 1976) had a complaint. The issue then clear recollection of the con- would be what the outcome tents of the ‘love would have been had the abuse letter’, she had destroyed the come to light in or around letter itself in or around 1999. March 1976. It was the Claim- ant’s case that the Claimant would have had the Agreed settlement: £30,000.

Issue 13 Page 10

G –v- TRUSTEES OF THE ROMAN CATHOLIC DIOCESE OF LEEDS Case report submitted by Richard Scorer Pannone LLP Claim for damages against a already serving a prison sen- employed by any earthly Roman Catholic Diocese for tence in respect of similar organisation, there being no in- personal injuries caused by matters, the Crown Prosecution tention to create legal child abuse. Service decided not to prosecute relations (see discussion of this Father Crowley in respect of of- debate in PI Focus September For the Claimant: Robert fences against the claimant. 2006). Seabrook QC and Justin Levin- son of 1 Crown Office Row The abuse had started in or In relation to the allegation of instructed by Richard Scorer of around 1990. Father Crowley negligence, the Defendant Pannone LLP. had joined the Church in the argued that the allegations Claimant’s village as a charis- against Father Crowley in 1987 For the Defendant: matic junior priest. Father had not been specifically sexual Nick Fewtrell of 18 St John Crowley groomed the Claimant allegations. Rather it was al- Street, Manchester and committed sexual abuse leged that Father Crowley had instructed by Jason Spencer, including buggery. Some of permitted boys in his care to Hill Dickinson. these events allegedly involved engage in sexual activity orgies with other local boys and amongst themselves, but it was Case report submitted by Rich- Father Crowley additionally not suggested that he had ard Scorer, Pannone LLP. As involved his dog. participated in it. this case involves child abuse, the Claimant’s name has been The Claimant’s case was However, these arguments were anonymised. initially pleaded primarily on considered by the Claimant’s the basis of vicarious liability. advisers to be very weak and it The Claimant, who was aged 23 During the course of the case was made clear to the Defen- at the date of commencement of however, significant evidence dant that settlement would only proceedings, brought a claim emerged that the Diocese of be discussed on a full liability for damages against the Roman Leeds had had serious concerns basis. Catholic Diocese of Leeds in about Father Crowley for many respect of psychiatric injury years, including long before the ARGUMENTS ON caused by sexual abuse which abuse suffered by the claimant. LIMITATION he suffered in 1990 – 1992. At A particular issue was the the time of the abuse, the actions of the then Bishop of The claimant issued Claimant was aged 9 – 11. The Leeds, David Konstant. In 1987 proceedings before the age of perpetrator of the abuse was a Konstant investigated Father 24 (the time limit for a claim Father David Crowley, a priest Crowley following allegations of based on vicarious liability), of the Defendant. misconduct involving young but after the age of 21 (the boys. Bishop Konstant wrote to time limit for a claim based on Father Crowley was Father Crowley: “You will never negligence). In the course of convicted in 1997 of 15 counts practice as a priest in this of indecent assault against 9 Diocese again”. Following this the proceedings, the boys in Bradford and letter, Father Crowley was sent Defendant’s Solicitor filed a Huddersfield. The Claimant, to work in Devon for three years statement stating that he had then aged 16, was aware of the but returned to the Diocese of been advised by the conviction of Father Crowley Leeds in 1990, when he was Defendant that Bishop from media reports and placed as the priest in the Konstant (who retired in expected that the police would claimant’s parish, and started 2004) was too ill to assist in contact him. However, the abusing him. It also appears the case and that, as a result, police did not contact him and that Father Crowley was the defendants were because he found the abuse supposed to sign a contract re- prejudiced by reason of the distressing, he did not garding his alcohol abuse and claimant’s delay in bringing contact the police. contact with youths, but it is proceedings. However, the unclear whether he ever did so Claimant’s advisers obtained Eventually in 2004, the Claim- and whether his actions were evidence that Bishop Kon- ant came forward to the police monitored at all. stant continues even now to and made a statement about be very active in the affairs of the abuse he had suffered by ARGUMENTS ON LIABILITY the Diocese, attending events Father Crowley. These In relation to the allegations of and giving public speeches allegations were put to Father vicarious liability the Defendant and Masses. In July 2006 Crowley and admitted in argued that it did not employ general terms by him. Because Father Crowley because priests Bishop Konstant Father Crowley was are not received an Honorary Degree Issue 13 Page 11

G –v- TRUSTEES OF THE ROMAN CATHOLIC DIOCESE OF LEEDS Case report submitted by Richard Scorer Pannone LLP Cont’d at Bradford University and Claimant was pursuing a gave a public speech at the successful career in this awards ceremony. regard, but it was argued that because of his year out from Evidence was obtained from University, his career had an academic who attended the started a year later than dinner after the awards would otherwise have been ceremony at which Bishop the case and that Konstant was present. The therefore he was entitled to a academic stated that there year’s loss of earnings. was no evidence that Bishop Technically the claimant had Konstant was ill or infirm. lost the last year of his career, i.e. the year before retirement, In December 2006 the case but such award would have was publicised in The been discounted to reflect Observer newspaper. In early receipt by some 40 response to questions from years. The Observer, Bishop Konstant and the Diocese of Medical evidence obtained for Leeds issued a public state- the Claimant and separately ment stating that: for the Defendant confirmed “Neither Bishop David that the Claimant was Konstant, nor the diocese of suffering from Post Traumatic Leeds, has been asked Stress Disorder as a result of whether the Bishop’s state of the abuse. The Claimant also health prevented him consumed excess alcohol. responding to questions about this litigation. The suggestion Agreed settlement: £62,500. that his health has become an This reflected that the Claim- issue has come as a complete ant had strong arguments on surprise to the Bishop”. liability and limitation, and was therefore a full liability This particular issue was un- settlement. It also reflected a resolved as at the date of the general damages award of settlement. around £30,000 - £40,000 together with a year’s loss of ARGUMENTS ON QUANTUM earnings, counselling costs and wasted tuition fees for the The Claimant was dyslexic at aborted University year. school (not related to the abuse) but obtained GCSEs The Claimant was represented and A levels and proceeded under a Conditional Fee onto University. At the Agreement. beginning of the second year of University, the Claimant became overwhelmed with feelings of distress about the abuse and abandoned his University studies. He resumed his studies the following academic year and graduated in 2003 with a 2:1 degree in drama.

The Claimant then embarked on a career as an assistant producer of TV dramas. As at the date of settlement the Issue 13 Page 12

C (A patient by her litigation friend X) – v – Executors of the Estate of G deceased. Case report submitted by Richard Scorer, Pannone LLP.

woke to find G masturbating • L i a b i l i t y w a s n e v e r Quantum: Damages for and that he had just ejaculated formally admitted as G had sexual assaults upon adult onto her face. C felt sick, dirty never been convicted of (or following childhood sexual and degraded. even charged with) the 1998 abuse. assaults during his lifetime. In late 1998, C went to the However, G had been Settlement approved by HHJ Police. In 1999 C was convicted convicted of raping C when Holman, Manchester County of 4 counts of rape of C between she was a child, C’s Court, 29 November 2005. 1984 and 1985. The charges allegations were consistent related solely to the assaults on with G’s earlier behaviour Patrick Sadd of Outer C before she was 16. G was im- and there was no evidence to Temple Chambers instructed by prisoned for 8 years. In March counter C’s allegations. Richard Scorer, Pannone LLP 2000 the Criminal Therefore, no discount was for the Claimant. Injuries Compensation made to reflect any risk that Authority awarded C £17,500, a the 1998 allegations Messrs Fielding Porter, Bolton, level 16 tariff award for “sexual would not be proved. for the Defendant. abuse: child”. In 2002, G died • The allegations of assault in prison. pre-December 1997 were C is 35 years old. From age 3 – statute-barred. Therefore, 7 she was in local authority In December 2003, when C was the Court would have been care. At age 7 she went back to aged 33, proceedings were faced with the task of her mother who by then was issued against G’s personal deciding what damage was married to G, who became her representatives claiming attributable to the events of stepfather. Between the ages of damages for the assaults 1998. In many ways this was 7 and 16, C was regularly committed by G. Section 2 an extremely artificial sexually assaulted by G. Until Limitation Act 1980 provides exercise which illustrates the the age of 11 the assaults con- that a claim for damages for a absurdity of Limitation rules sisted of touching C over her non-negligently caused injury, which artificially put some body and e.g. a deliberate assault, is sub- parts of the damage caused genitalia. From the age of 11 G ject to a non-extendable time by the abuser beyond the raped C on a regular basis. limit of six years from the date reach of the claim despite the of the assault, or, if later, the self evident difficulties faced C left her mother’s home in date of the Claimant’s majority. by C, an extremely damaged 1986. She did not disclose the The running of this limitation individual, in reporting her abuse at the time. Between period would only have sus- abuser who terrorised her 1986 and 1998 G did not pended in C’s case if she had and committed violent assault C. In early 1998, C been under a disability for the sexual assaults upon her then aged 28, was persuaded whole of her adult life until the even when she was an adult. by G to visit her mother who date of issue of the claim form. C’s medical evidence from was grievously ill (and who died As it happened, as at the date Mrs Valerie Mellor, a in 1999). On three visits to her of settlement C was a patient, c o n s u l t a n t c l i n i c a l mother C was seriously and vio- but she had not been a patient psychologist whose view was lently sexually assaulted by G. throughout the whole of her that the 1998 assaults adult life. Therefore, in respect had made worse an already In the first assault G grabbed of the childhood assaults, the damaged individual but hold of C, forced her to the time limit for claiming had one who was coping: `If the floor, grabbed her breasts and expired when C turned 24. events of 1998 had not oc- private parts and tried to get on Hence, the issued claim form curred , C would still have top of her. After a long related solely to compensation been a damaged young struggle, C escaped. In the for the assaults in 1998 and woman as a result of her ear- second incident G pushed C their aftermath. lier childhood experiences. against the fridge, trapping one However, prior to 1998, C of her arms. He covered her Two weeks before trial the was coping with her life in mouth, pushed himself up Defendants agreed to that she was working and against C, and began fondling settle the Claimant’s claim for driving herself about. her breasts. C began fighting £50,000. The Claimant being a She reported to me that at back with her free arm, punch- patient, court approval was re- this point in time i.e. 1996, ing and hitting G. C grabbed a quired. A number of issues she had been managing rea- knife and stabbed him in self were relevant to valuing this sonably well. It is clear from defence. In the last incident C claim: 1998, her problems were was dozing on the settee. She Issue 13 Page 13

C (A patient by her litigation friend X) – v – Executors of the Estate of G deceased. Case report submitted by Richard Scorer, Pannone LLP Cont’d … exacerbated … This is not repetition of those assaults provisions were not engaged surprising … victims of severe (an element that would have in this instance. The award persistent sexual abuse fre- been particularly distressing for £17,500 was expressly quently do not present overtly in reviving for C the silent made in relation to `sexual with symptoms of post horror of her childhood) and abuse: child`, whereas it was traumatic stress disorder until the context in which the common ground between the after they have disclosed their 1998 assaults were made – parties that this claim could abuse to others’. that is, placing the Claimant only relate to the events in a desperate dilemma by which had occurred Mrs Mellor considered that C insisting that she visit her in 1998 when C was an was suffering from `severe’ gravely ill mother. However, adult. chronic post-traumatic stress recent Court of Appeal au- disorder and would continue thority – Richardson – v- to need therapy. D’s medical Howie makes clear that evidence was from Dr Web- aggravated damages will only ster, Consultant be awarded in a “wholly Psychiatrist. She considered exceptional case” … that C suffered from `moderately severe` PTSD. • C claimed loss of earnings, Dr Webster did not directly however, it was difficult to address the relative causal unravel the competing impact of the events of 1998. caused of C’s difficulties in working. The Defendant ar- • Conventionally, in cases of gued that C’s work record the abuse, the Court makes was already affected by the the award on two bases – childhood abuse by G, for first, for the harm done by which C could not claim; C’s the assaults themselves and reaction to her mother’s secondly, for the psychologi- death in 1999 and her sense cal/psychiatric consequences of guilt about her mother’s of the assaults. This divi- death (however misplaced) sion is more easily under- played a significant part in stood the greater gap in time t h e C l a i m a n t ’ s between the assaults and the deteriorating mental health; onset of psychiatric harm. In also, C had convictions the present case, two of the for obtaining property by de- three assaults involved ac- ception for which she was tual physical violence, al- given 2 though there is no record of the Claimant attending ac- years probation in November cident and emergency or her 1998 – declaration of this con- GP following the assaults. viction would have affected On a valuation assessed on her ability to find work in any full attribution of her existing event. problems to both the child- hood abuse and the 1998 as- • C claimed the costs of saults, the Claimant could therapy. These were dis- expect to recover around puted, and again the De- £50,000, based on Kemp fendant argued the attri- comparables. The prob- bution point. able range of damages in respect of 1998 assaults • Having regard to these un- alone was therefore around certainties and the difficul- £25,000 - £30,000, but there ties of proving attribution to was no direct precedent. the 1998 assaults in isolation C elected to accept the • C claimed aggravated Defendant’s offer of £50,000 damages, based on the which was approved by specific nature of G’s the Court. conduct, given his assaults of C as a child, the attempted • T h e C I C A r e p a y m e n t Issue 13 Page 14

YOUNG –v- CATHOLIC CARE and THE HOME OFFICE an untypical case where the of Appeal in K R & Others –v- The inherent problem with his- courts have had to answer that Bryn Alyn Community (Holdings) toric child sex abuse cases is question in a child abuse con- Limited [2003]. It held that in text. The Court of Appeal has, cases of psychiatric injury the that there is invariably a signifi- however, caught itself on the time when the injury became cant time gap between the horns of a dilemma. On the significant to the claimant was abuse complained of and the one hand it recognises a claim when he/she realised they were victim initiating proceedings. arising out of child abuse is not suffering from a psychiatric con- a run of the mill personal injury dition which could have been

claim, but considers itself caused by the abuse that they The usual scenario is that the obliged to interpret the Limita- suffered in childhood. This is victim was abused as a child, tion Act 1980 as if it was. frequently the case when the when vulnerable in every sense claimants in Bryn Alyn obvi- of the term, who then sup- In Ablett & Others –v- Devon ously appreciated that they had County Council and the Home been abused, but their psychiat- presses their memories of what Office Sedley L.J. said: ric illnesses did not manifest happened. There are feelings of themselves until many years guilt, shame and embarrass- “ Inevitably there is a problem later in adulthood. ment. The history of abuse is of limitation in these proceed- ings. I say “inevitably” be- The Court of Appeal in Young often kept hidden from spouse cause it is the nature of abuse are saying that that is the wrong and family. Their memories of of children by adults that it approach. The Section 14 (1) the abuse are suppressed and creates shame, fear and con- question must be answered ob- often very effectively. The fusion and these in turn pro- jectively. duce silence. Silence is known mask, however, sometimes slips to be one of the most perni- To refresh our memories to es- through what we call the trig- cious routes of abuse. It tablish the date of knowledge for gering of memories. A common means that allegations com- when the three year limitation experience is for the unpleasant monly surface, and they do, period is to run Section 14 (1) only many years after the says: memories to be rekindled as a abuse has ceased”. consequence of watching a tele- “……….references to a person’s vision programme, or reading Against that recognition of real- date of knowledge are refer- an article in a newspaper, or ity Sedley LJ goes on to say: ences to the date on which he where a defendant pleads limi- first had knowledge of the fol- perhaps through being con- tation as a defence: “….[where lowing facts – tacted as a result of a police in- defendants], however, have ex- vestigation. ercised their undoubted right to (a) that the injury in question plead the Limitation Act in bar of was significant; and The “triggering” can have a dra- the actions. In consequence two matic effect. A victim may ac- main groups of issues will form (b) that the injury was attribut- tually suffer a nervous break- part of litigation. First, what was able in whole or in part to the down and become very ill. the date of each claimant’s act or omission which is al- Against such a background a knowledge for the purposes of leged to constitute negligence, victim will seek advice which Section 14 of Limitation Act nuisance or breach of duty; culminates in them consulting 1980 ? Second, if that date of and a solicitor. knowledge fell beyond the limi- tation period, ought the time bar (c) the identity of the defendant, As a result of this rather circui- to be lifted by virtue of Section and tous route an opinion has to be 33 of the Act?”. formed as to whether there is a (d) (which we can ignore for the viable case to pursue. Leaving Until the Court of Appeal deci- moment. to one side the issues of liability sion in Young it was considered and causation, the question that the Section 14 (1) question every lawyer has to ask him/ had to be answered subjec- herself is whether or not if a tively. In other words when did claim is going to be made is it the claimant realise they were “statute barred” ? suffering from a psychiatric in- jury which could have been The case of Young –v- Catholic caused by the abuse? This was Care and the Home Office is not the test laid down by the Court Issue 13 Page 15

YOUNG –v- CATHOLIC CARE and THE HOME OFFICE CONT’D ers’ institution. Much to his “Within months of that (2) For the purposes of credit on release he made some- chance meeting, the claim- injury is significant if the thing of his life and became ap- ant’s world collapsed around person whose date of knowl- parently a successful business- him, and he knew why. He is edge is in question would man. Unfortunately in 1996 he now suffering a cluster of se- have reasonably been con- had a chance encounter with rious psychiatric symptoms sidered sufficiently serious one of his abusers, and this because of being in care…”. to justify the institution of had the effect of “triggering” his proceedings for damages memories of the abuse which The Court of Appeal held that against a defendant who do hitherto he had successfully the recognition of the symptoms not dispute liability and was suppressed. His whole world and their cause were suffi- able to satisfy judgment. fell apart and according to the ciently serious for the claimant medical experts during the ini- to have initiated legal proceed- (3) For the purposes of this tial years following release from ings within three years. He was Section a person’s knowl- the young offenders’ institution therefore out of time and so the edge includes knowledge he had suffered post traumatic case failed. which he might reasonably stress disorder. He neverthe- have been expected to ac- less successfully got on with his Unless Young is overturned quire – life until as the court put it the subsequently in the House of PTSD was “rekindled in 1996 Lords, or Parliament amends (a) Were the facts observ- as a result of the chance en- the Limitation Act 1980 as rec- able or ascertainable by him, counter”. ommended by the Law Commis- or sion, practitioners need to be In 1999 Mr Young was con- very alive to the test as set out (b) Were the facts ascer- tacted by the police who were in Young which I repeat: tainable by him with the investigating allegations of help of a medical or other abuse, but he did not respond. “The standard that has to be appropriate expert advice In December 2000 he was vis- applied is that of reasonable which it is reasonable for ited by them, but it was not un- behaviour of a victim of child him to seek. til January 2001 that he gave abuse who has suffered a de- his first statement to the police. gree of injury suffered by the In Young Dyson LJ said: The first reference to abuse in claimant in question of which his general practitioner records he has knowledge”. “The standard that has to be were in March 2001. In Sep- applied is that of the reason- tember of that year he con- There is a solution to escaping able behaviour of a victim of sulted solicitors, and proceed- the fatal clutches of Young and child abuse who has suffered ings were issued in April 2003. this lies in convincing the court a degree of injury suffered by In the meantime two abusers a reasonable victim of child the claimant in question and had been convicted. So there abuse would not put two and of which he has knowledge”. can be no doubt that Mr. Young two together, and make four, was the victim of sexual abuse, until they had seen psychia- What does this mean in prac- but his claim failed in the Court trists who had joined up the tice? It means when was it rea- of Appeal, and so why was dots for them. Can it really sonable for the claimant to have this? fairly be said that Mr. Young put two and two together and knew that he was suffering a made four. In other words The Court of Appeal concluded significant psychiatric injury in when did they realise that the that in applying an objected 1996 when his world fell apart? abuse had affected them? That test to the Section 14 questions It seems to me that his is the “trigger” date when they it would have been reasonable “behaviour” following the would have been expected to for Young to have initiated pro- chance encounter was not un- have initiated proceedings. ceedings within three years of typical. 1996. The chance meeting was So what happened in the Young the crucial point, because it case? was then that his world fell apart that Young appreciated Mr. Young who was born in that the abuse had caused him 1959 had the misfortune to be damage. It was not when he sexually abused having been consulted his general practitio- taken into care, placed in a ner or when he saw psychia- boarding institution, and then trists, but as the trial judge subsequently in a young offend- said: Issue 13 Page 16

YOUNG –v- CATHOLIC CARE and THE HOME OFFICE CONT’D

Claimants are going to be very have very few sex abuse claim- “There is no discernible differ- dependent on the evidence that ants as clients under the age of ence, and point of legislative their expert psychiatrist gives to twenty four. policy, between victims of in- the court as regards the behav- tentional and unintentional iour of the typical child sex The Australian High Court torts. No legislative purpose abuse victim. The claimant will faced similar legislative provi- is served by putting perpetra- have to prove in a case such as sions and stated the obvious: tors of intentional torts in a Young, where you have various better position than the per- potential trigger dates, outside “……….the statute extends petrators of unintentional the pleaded limitation window, the limitation period in the torts”. that the reasonable child abuse case of a person who was victim would have initiated pro- neglected as a child, but not If Mr. Young’s case had been ceedings at the same time that one who was sexually tried by the Australian High he or she did. abused. It is difficult to un- Court there is every likelihood derstand why the policy of that he would have succeeded. This is of course entirely unsat- the Act would be to dis- In summary they would not isfactory and the Court of Ap- criminated in that fashion”. have followed Stubbings –v- peal’s application of Section 14 Webb, the previous case law to child sex abuse cases is con- Exactly the same could be said and would have accepted that tradictory, given that it clearly about the English Limitation this was a breach of duty case. recognises that such cases are Act 1980 and the House of Moreover it would have taken a not your run of the mill per- Lords interpretation of it. more realistic approach to the sonal injury claim. interpretation of the Section 14 For the Australians the trespass questions. Mrs. Stingle had It is unfortunate that the Court of a person was an action for developed PTSD some thirty of Appeal in Young was not re- breach of duty, and based their years after the event, and only ferred, so it would seem, to the reasoning on English authority appreciated the causal link Australian High Court decision pre-dating Stubbings –v- Webb. sometime thereafter. It seems in Stingle –v- Clark [2006] After all abusing someone is a unlikely that Mr. Young would HCA 37 [20.7.06]. breach of a duty not to do so. have been denied justice in the circumstances. In Stingle the High Court re- Had it not been for the decision versed the decision of the Court in Stubbings –v- Webb could It is odd and unsatisfactory to of Appeal of the Supreme Court Mr. Young have pleaded his say the least that we have two of Victoria. This was a breach case differently, and sought to commonwealth common law of duty case where the plaintiff rely on Section 33? Can it jurisdictions taking opposing had been raped by the defen- really be said that the defen- lines on what constitutes dant, and had instituted pro- dants in his case were preju- breach of duty and the applica- ceedings some thirty years after diced by the “delay” in bringing tion of the laws of limitation in the event following the develop- proceedings in view of the fact the context of child abuse. ment of PTSD. that two of the abusers had been convicted? If the evidence The thoughts and comments Australian limitation laws are was adequately cogent in 2002 are of course entirely my own. not dissimilar to those in Eng- and 2003 for criminal convic- land, but the Australians have tions why was it no longer so in Alan Collins decided not to follow the House civil proceedings? Solicitor-advocate of Lords decision in Stubbings – Dyer Burdett & Co v- Webb, in which it was held Mr. Young was also of course 1.3.07 that sexual assault be a tres- precluded from suing his abus- © Alan Collins pass to the person, and was not ers because of the non- a breach of duty, and conse- extendable six year rule given quently the subject of the non- the decision in Stubbings –v- extendable six year limitation Webb. Maybe it would not have period. Therefore a child sex been financially worthwhile, but abuse victim has to bring, in the irrationality of the law is the ordinary course of events, a amply demonstrated by the claim based in trespass within Australian High Court where six years of their attaining their Gleeson C J said: majority in other words by the age of twenty four. Practitioners Issue 13 Page 17

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