Historic sexual abuse, trustees and vicarious liability – again

Swift J has just handed down her final decision in Raggett v The Society of Jesus Trust 1929 for Roman Catholic Purposes & Anor [2012] EWHC 3132 (QB) (09 November 2012). Mr Raggett claimed damages for personal injury, loss and damage consequent upon sexual abuse and assaults allegedly committed on him by a teacher, one Fr Spencer, who died in 2000, when he was a pupil at Preston Catholic College between 1969 and 1976.

Recent cases

Raggett is one of a cluster of recent cases about liability in tort or delict for sexual abuse by clergy; and some of the alleged incidents took place some thirty or forty years ago. In Various Claimants v The Catholic Child Welfare Society & Ors [2010] EWCA Civ 1106 (26 October 2010) the argument was about the vicarious liability of the De La Salle Institute for the alleged physical and/or sexual abuse of pupils by staff at St William’s School Market Weighton. Under the title Catholic Child Welfare Society & Ors v Various Claimants and The Institute of the Brothers of the Christian Schools & Ors it is currently on the list of cases pending before the Supreme Court. Possible further proceedings are on hold in yet another case, JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012), in which the claimant seeks damages from the Diocese in reparation for alleged rape and sexual abuse by one Fr Baldwin between 1970 and 1972 when she was in a children’s home operated by the Sisters of Charity.

Raggett at first instance

The present case has something of a complex history.

In 2009 Swift J handed down judgment on the issues of limitation and liability but declined at that point to come to any conclusions about causation. In Raggett v The Society of Jesus Trust 1929 for Roman Catholic Purposes & Anor [2009] EWHC 909 (QB) (05 May 2009) she held that, applying the requisite test for knowledge for the purposes of s 14 of the Limitation Act 1980, the claimant must be taken to have known the nature and extent of the acts that he alleged had taken place from the time the sexual abuse was committed and that the claim had become time-barred in June 1979. Nevertheless, she was satisfied that it would be equitable to allow the action to proceed, exercising her powers under s 33 of the Act; to the extent that there was any prejudice in relation to the issue of causation, it was likely to operate to the detriment of the claimant, since he had the burden of proving his loss.

Raggett in the Court of Appeal

The Governors of Preston Catholic College – who, it was accepted, were vicariously responsible for Spencer – then appealed on two grounds:

  • that Swift J should not have decided that the abuse had occurred before deciding whether or not to exercise her power to extend the time limit: what she had done, in effect, was to “put the cart before the horse”, an approach not permitted on the authorities and which had vitiated the exercise of her discretion under s 33; and
  • that she had applied the wrong principle in determining whether or not the Governors had suffered prejudice in relation to the issue of causation.

The Governors sought a retrial of the issues on limitation, liability and causation before a different judge. Delivering the judgment of the Court, Thomas LJ held in Raggett v Society of Jesus Trust of 1929 for Roman Catholic Purposes & Anor [2010] EWCA Civ 1002 (27 August 2010) that there was no basis for concluding that the order in which Swift J had approached the issues had affected the substance of the way in which she had exercised her discretion or reached her decision under s 33 and dismissed the defendants’ argument about Swift J’s exercise of her discretion in relation to causation.

The causation and quantum hearing

The latest proceedings related to causation and quantum of damages. Swift J concluded that that the psychological effects of the sexual abuse suffered by the claimant were confined to a period of about eight years from the start of the abuse until the beginning of his third year at University. She concluded that his subsequent problems were caused mainly by his alcohol abuse and his personality traits and that the abuse had not played any significant role in his later difficulties. In the circumstances, she awarded him damages for pain, suffering and loss of amenity in the sum of £40,000 with a further £4,344 interest and £10,579.03 in special damages and interest in respect of the costs of therapy up to the end of 2009. However, she made no award for past or future loss of earnings, handicap on the open labour market or pension loss.

Comment: Whether or not Mr Raggett will go back to the Court of Appeal to argue over causation and quantum remains to be seen. However, his case raises both a general issue of what might be termed “juridical morality” and a particular issue for faith-groups  faced with historic abuse claims.

One of the few comments on the decision to allow the matter to proceed under the discretion conferred by s 33 condemns it utterly:

“Whatever the truth of the matter, we make no apology for deploring this decision. For the reasoning accepted by the judge is akin to fevered ideological and religious conversion fuelling paranoia and igniting witch-hunts … In the interests of justice and a  robust and confident society, a  cap needs to be placed on historic claims of alleged abuse, and if the courts will not act, then a political solution must be sought”.

Furthermore, Neil Addison points out in a recent comment on The Tablet website about the Jimmy Saville allegations that Lord Sumption recently expressed himself in very unenthusiastic terms on the matter of exceptions to the Limitation Act. In his dissent from the majority judgment in  Birmingham City Council v Abdulla & Ors [2012] UKSC 47 (24 October 2012) – an appeal about whether or not an equal pay claim should have been regarded as time-barred – he said this:

“Limitation in English law is generally procedural. But it is not a technicality, nor is it necessarily unmeritorious. It has been part of English statute law for nearly four centuries. It has generated analogous non-statutory principles in equity. Some form of limitation is a feature of almost all other systems of law. And it has been accepted in principle in the jurisprudence of both the Court of Justice of the European Union and the European Court of Human Rights. Limitation reflects a fundamental and all but universal legal policy that the litigation of stale claims is potentially a significant injustice. Delay impoverishes the evidence available to determine the claim, prolongs uncertainty, impedes the definitive settlement of the parties’ mutual affairs and consumes scarce judicial resources in dealing with claims that should have been brought long ago or not at all” (paragraph 41).

But the majority of the Supreme Court did not agree with Lord Sumption and dismissed the City Council’s appeal.

It should be noted that there is no statute of limitation on crimes: a recent example of “historic” crimes being prosecuted successfully is the jailing of Reginald Davies on 26 October for sexual assaults committed between 1949 and 1973. It should also be remembered that historic abuse claims almost always arise out of allegedly-criminal behaviour by the original tortfeasor. Nor are we likely to see an end to such claims any time soon: the recent announcement by North Wales Police of a further inquiry into historic claims of child abuse in care homes in its area is proof positive of that.

It is extraordinarily difficult to balance the interests of a victim who may not even have been aware that he or she was a victim until long after the events that caused the trauma against the possibility that by the time the matter comes to court the evidence may have gone completely stale. Moreover, the fact that there is no statute of limitations for crimes is by no means conclusive because civil cases are decided on the balance of probabilities rather than on the much more rigorous test of certainty “beyond all reasonable doubt”.

Ultimately, however, I would hold to the view that the judgment as to whether or not a fair trial is possible in a particular case has to be left for the court to determine in the instant case on the facts before it – that’s one of the things judges are for.

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