AB & Ors v Nugent Care Society & Anor (Rev 1)

When deciding whether to disapply the limitation period for a historic sexual-abuse claim, the court must determine whether it is equitable to require the defendant to meet the claim on its merits. It must consider all the circumstances, particularly the effect of delay on the defendant’s ability to investigate and adduce evidence. Loss of the limitation defence is not itself relevant prejudice.

The discretion is wide and unfettered. The claimant’s psychological inhibition from commencing proceedings, the cogency of the available evidence and proportionality are relevant. Serious sexual abuse may constitute a significant injury for limitation purposes without immediate physical injury or diagnosed psychiatric damage. Knowledge is assessed by a practical, relatively unsophisticated and impersonal standard.

These conjoined appeals concerned claims arising from alleged historic sexual abuse in children’s homes. In the Nugent Care Society proceedings, Irwin J permitted JPM and DVB to continue under section 33 of the Limitation Act 1980, but refused relief to JB. The defendant appealed in respect of JPM and DVB, while JB appealed against the refusal.

In the Wirral proceedings, His Honour Judge Main QC held that GR possessed significant knowledge outside the primary limitation period, but exercised the section 33 discretion to allow his trespass claim to proceed. Both parties appealed.

The Court of Appeal considered the correct approach to section 33 following A v Hoare [2008] UKHL 6, together with cross-appeals by DVB and GR concerning when they acquired knowledge of a significant injury under sections 11 and 14.

1. All appeals and cross-appeals were dismissed. The section 33 discretion was properly exercised in favour of JPM, DVB and GR, but not JB. Although Irwin J had treated earlier findings about abuse too conclusively in the cases of JPM and JB, the Court of Appeal reconsidered the discretion and reached the same results.

2. The section 33 discretion is wide and unfettered. The ultimate question is whether it is equitable, having regard to all the circumstances, to expect the defendant to meet the claim on its merits despite the delay. The court must consider the reasons for delay, including any psychological inhibition caused by the abuse, and the effect of delay on the defendant’s ability to investigate and assemble evidence. The loss of the limitation defence is not itself relevant prejudice.

3. Historic abuse claims based on vicarious liability ordinarily involve narrower factual disputes than earlier systemic-negligence claims. The central issues are whether the abuse occurred, whether the defendant was vicariously liable, causation and quantum. Oral evidence may assist the section 33 assessment by revealing both the cogency of the claimant’s account and whether the claimant was inhibited from bringing proceedings. The limitation question must nevertheless be decided before substantive liability, so that findings reached on evidence already degraded by delay do not determine whether a fair trial remains possible.

4. JPM’s cogent account, the evidence still available to the defendant and his accepted inhibition from reporting the abuse justified disapplication. DVB’s alleged abuser had relevant convictions, the causation dispute was narrow and relatively recent, and the issues remained capable of a short, fair trial. In GR’s case, Judge Main had recognised the serious evidential difficulties and was entitled to conclude that the allegations of abuse and vicarious liability remained fairly triable.

5. JB’s position was different. The alleged abusers and several potentially important witnesses were dead, relevant records had been destroyed, inconsistencies remained, and causation was complicated by a pre-existing disorder. His delay was not explained by a psychological or psychiatric condition, and proportionality weighed against allowing the relatively limited claim to proceed.

6. For sections 11 and 14, serious sexual abuse may amount to a significant injury without immediate physical injury or diagnosable psychiatric damage. The statutory concept of personal injury must receive a broad construction consistent with a practical and relatively unsophisticated approach to knowledge. DVB knew of significant injury shortly after the assault. GR had such knowledge no later than his sixteenth birthday.

1. Court of Appeal (Civil Division): All appeals and cross-appeals were dismissed. The orders permitting JPM, DVB and GR to proceed, and refusing permission for JB to proceed, were left undisturbed.
2. High Court, Queen’s Bench Division: Irwin J exercised the discretion under section 33 of the Limitation Act 1980 in favour of JPM and DVB, but refused to exercise it for JB. He held that DVB had significant knowledge outside the primary limitation period.
3. Liverpool County Court: His Honour Judge Main QC held that GR possessed significant knowledge outside the primary limitation period, but exercised the section 33 discretion to allow his assault and trespass claim to proceed.
4. Earlier proceedings concerning JPM and JB: Holland J had held their claims time-barred. Following A v Hoare [2008] UKHL 6, an earlier constitution of the Court of Appeal remitted the section 33 issues for reconsideration because the original inquiry had proceeded on an incomplete legal basis.