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Limitation following the decision in Murray -v- Devenish & Others

Defendants often rely upon technical limitation defences, particularly in claims involving allegations of historic sexual abuse.

The primary limitation period for personal injuries is now contained in s.11 of the Limitation Act 1980.  It provides that in claims for personal injury primary limitation is three years from the later of: –

(a) The date on which the cause of action accrued, or

(b) The date of the claimant’s knowledge.

(c)  The Claimant’s 18th birthday.

This can and frequently does cause difficulties to claimants who were sexual abused years ago if they have felt unable to come forward, report their abuse and proceed with a claim for compensation.  By contrast Defendant’s avail themselves of the technical defence in circumstances when they would otherwise be liable but for the limitation defence. 

S.33 of the 1980 Act gives the Court a discretion to disapply the primary limitation period and extend the otherwise strict primary limitation period. 

In Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus) [2018] EWHC 1895 (QB) Mr Justice Nicol reviewed the exercise of the Court’s discretion.

The claimant sued the Provincial Superior of the London Province of the Sons of the Sacred Heart of Jesus for alleged sexual assault that took place between 1973 and 1974 at a school run by the Order in Mirfield. The alleged abuser, Michael Riddle was presumed to have died in 1999, aged 93, in Kenmare, Ireland and it was accepted that, if the assaults took place and if the claim could otherwise be maintained, the Order would be vicariously liable.

The claimant was 18 in April 1976, at which point the primary limitation period began to run.  It expired in April 1979. The Claimant did not issue his claim until March 2013.  Accordingly, the action was therefore well out-of-time and the Claimant sought the exercise of the Courts discretion.  The Defendant argued that Riddle’s death during the period of the claimant’s delay meant the defendant was unable to properly investigate the allegations of sexual abuse and a fair trial was no longer possible. Paradoxically, had Riddle died during the period of primary limitation and had the claimant issued his claim the primary limitation period then the fact of Riddle’s death would have been irrelevant.  Nonetheless, the defendant raised a limitation defence on the basis that the claim had been issued beyond the primary limitation period and the Court should not exercise its discretion to extend the primary limitation period in favour the claimant.

For good measure the defendant also made an application to strike out the claimant’s claim as an abuse of process. In May 2014 and following the commencement of the claimant’s claim he published an autobiography that included accounts of sexual abuse by Riddle. It was established the claimant had compiled the autobiography from 45 personal diaries and thousands of letters and other documents he had kept since childhood. However, the claimant destroyed all but 5 diaries and the majority of the letters he used to write the book.

The facts of the case and the reasons for the delay that the Court considered were relevant to the exercise of its discretion were reviewed by Mr Justice Nicol.  He noted there had been no record of any allegations of sexual abuse against Riddle, apart from the claimant and a relative who only made a similar complaint after the claimant had instructed solicitors.

Riddles death

The defendant said that it had been undeniably disadvantaged by the death of Riddle because it was unable to take instructions from Riddle and could not properly cross-examine the claimant and his witnesses.  The defendant went further and said that it would have been professionally improper to suggest the claimant was not telling the truth about the allegations of abuse as Riddle’s death had prevented it from obtaining any evidence to cast doubt upon the credibility of the claimant’s evidence.

The claimant suggested that if Riddle had been alive to give evidence at trial he would hardly have admitted to the allegations of sexual assault and the court should readily accept this witness would have denied each and every allegation. Thus, Riddle’s death did not dilute the quality of the evidence before the court and the defendant was not thereby prejudiced.  However, the Court looked at the almost 50-year-old case of John v Rees 1970 that highlighted the uncertainty of litigation. The court placed considerable emphasis upon Riddle’s death and the apparent prejudice to the defendant.  However, the Court made it clear that although Riddles death meant the defendant had discharged its evidential burden, the decision was limited to the circumstances of the present case.

The length of the delay

The claimant had delayed the issue of his claim by 34 years. The claimant sought to explain the delay on the basis that he did not want to start a court action whilst his mother was alive for fear that she would be distressed by learning what had happened to her son. However, the claimant had in fact contacted the defendant about a year before his mother’s death in 2011. Whereas the court accepted the claimant may have felt some concern towards his mother, this particular explanation did not suffice to temper any prejudice to the defendant caused by the delay.

Absence of Documents

The court accepted the claimant had not intentionally destroyed documents that would have assisted the defendant. Nonetheless, the defendant was able to argue that the destruction of potentially helpful documents prejudiced its defence.

By the date of the trial many of the documents that would have assisted the parties could not be located or had been destroyed.  It followed that in the absence of potentially useful documents the court had to place greater emphasis upon witness evidence.  Unfortunately, the claimant who boasted a remarkable memory proved fallible when giving evidence.

Conclusions

On balance, Nicol J decided that it would be inequitable to exercise his discretion in favour of Mr Murray and dismissed the claim.

Defendant solicitors will seek to draw broad conclusions from this case and argue that the death of an alleged perpetrator is fatal to all delayed claims. That would be fallacious. Frequently there will be witnesses other than the claimant to corroborate the allegations of sexual abuse. Often the defendant has been convicted in the criminal courts of sexual offences against the claimant or similar sexual offences against other individuals which help to show a perpetrators proclivity to abuse. There may be documents that point to the probable culpability of the defendant, such as professional disciplinary hearings evidence and conclusions, contemporaneous decisions that have led to the dismissal of the defendant, written complaints either from the claimant or other witnesses alleging sexual abuse, and mea culpa letters from the defendant expressing remorse. 

Whilst limitation remains a technical and tactical part of the defendant’s armoury, it is by no means always fatal in an historic sexual abuse claim. However, a claimant cannot guarantee that the Courts will allow a late claim to proceed, thus if you or a family member has been affected by historic sexual abuse it is imperative that you seek specialist advice as soon as possible. Should you wish to speak to us on a confidential, no obligation basis, please email us at enquiries@robsonshaw.uk, or call us any time on 01392 345333.

 

 

 

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