AB & Ors v The Nugent Care Society

Where a limitation decision was made before a material change in the law, the appellate court should not ordinarily determine the discretionary issue afresh if it has not heard the evidence and the first-instance judge has not assessed the issue under the new legal framework.

In historic abuse claims, section 33 of the Limitation Act 1980 may require consideration of vicarious liability, inhibition in complaining or bringing proceedings, causation, and the parties’ present evidential difficulties. The issue should generally be reconsidered by the judge who heard the evidence.

Adult claimants brought historic abuse claims against the proprietors of a care home. The claims were framed in systemic negligence and arose from alleged assaults committed when the claimants were juveniles.

Holland J held that the claimants’ dates of knowledge fell outside the primary limitation period under sections 11 and 14 of the Limitation Act 1980, and declined to extend time under section 33. After the House of Lords decision in A v Hoare, the parties accepted that the section 33 assessment had proceeded on an incomplete legal basis. The issue before the Court of Appeal was whether to decide section 33 itself or remit it to the first-instance judge.

1. The appeal was allowed to the extent that Holland J’s decision under section 33 of the Limitation Act 1980 was set aside and the matter was remitted to him.
2. A v Hoare [2008] 2 WLR 311 had materially changed the applicable law. Section 11 extends to claims in tort arising from trespass to the person, including sexual assaults, so a claimant may rely on an employer’s vicarious liability for an employee’s assault. The approach under section 14(2) also required the court to identify actual and imputed knowledge of injury and ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify proceedings. Psychological inhibition was relevant to section 33 rather than centrally to section 14(2).
3. The first-instance section 33 decision was incomplete because it had not addressed the possible vicarious liability case, inhibition in complaining or bringing proceedings, the causal effect of the historic abuse, or the parties’ late-stage evidential difficulties.
4. The Court of Appeal had not heard the oral evidence and could not independently assess credibility or the medical evidence. It could not properly supply the missing evaluative findings. Remittal was therefore appropriate despite the parties’ joint request that the Court decide section 33 itself.
5. The court declined to give general procedural guidance following A v Hoare and confined its decision to the case before it. The formal order was: appeal allowed.

• Court of Appeal (Civil Division): allowed the appeal on the section 33 issue and remitted the matter to the first-instance judge.
• High Court of Justice, Queen’s Bench Division: Holland J’s decision, reported at [2006] EWHC 2986 QB, held that the dates of knowledge fell outside the primary limitation period and declined to extend time under section 33.