AB & Ors v Nugent Care Society

For historic abuse claims framed in negligence or breach of duty and involving personal injury, the primary limitation period is three years from accrual or the claimant’s date of knowledge, subject to the court’s equitable discretion under section 33 of the Limitation Act 1980.

Knowledge is assessed by identifying the claimant’s actual and imputed knowledge, then asking whether a reasonable person with that knowledge would have regarded the injury as sufficiently serious to justify proceedings. Psychological inhibition and the effects of abuse are relevant under section 33, not ordinarily under the knowledge test.

The discretion is unfettered and must be exercised individually. The central practical question is whether a fair trial remains possible, having regard to all the circumstances and especially forensic prejudice.

The judgment concerned four historic abuse claims arising from St Aidan’s children’s home. Two cases had previously been considered by Holland J, who refused to extend limitation. The Court of Appeal remitted those cases for reconsideration after the House of Lords decisions in A v Hoare and Young v Catholic Care (Diocese of Leeds).

The findings of abuse in the two remitted cases were treated as fixed. Two further cases, DVB and HC, were heard by Irwin J. The issues were the applicable limitation regime, date of knowledge in DVB, and whether it was equitable to disapply the limitation provisions under section 33.

1. Applicable regime. An action against an abuser remains an action in trespass to the person. Where the claim is instead based on breach of duty and includes damages for personal injury, it falls within section 11 of the Limitation Act 1980. The primary period is three years from accrual or, if later, date of knowledge, subject to section 33. The reasoning in Lister v Hesley Hall Ltd also means that institutional defendants may be vicariously liable for abuse closely connected with employment in residential institutions.
2. Knowledge. Section 14 requires the court to identify the claimant’s actual knowledge, add knowledge reasonably imputable under section 14(3), and ask whether a reasonable person possessing that knowledge would have considered the injury sufficiently serious to justify proceedings. The claimant’s personal intelligence, psychological state and reluctance to sue do not alter that objective standard. Those matters may be relevant to the section 33 discretion.
3. Section 33. The question is whether it would be equitable to allow the action to proceed. The discretion is unfettered, although the statutory factors must be considered. Delay alone is not determinative. The court must assess the effect of delay on the defendant’s ability to defend the claim, the cogency of the evidence, the reasons for delay, proportionality and the possibility of a fair trial. In abuse cases, inhibition caused by the abuse may materially explain delay.
4. A relevant conviction of the alleged abuser is powerful evidence supporting the fact of abuse and will ordinarily reduce prejudice on that issue, although it does not determine the section 33 discretion. An acquittal may be neutral or may weigh against extension, depending on the circumstances. The court rejected any free-standing public interest in particular civil abuse claims proceeding.
5. The discretion was exercised in favour of JPM because abuse was established, the principal dispute concerned causation, and the passage of time had not significantly impaired a fair trial. It was refused for JB because the causation dispute was materially affected by time and the claim was modest. It was exercised in favour of DVB because the conviction of the alleged abuser strongly supported the abuse allegation, the issues were narrow and a short fair trial remained possible. It was refused for HC because the account had become difficult to disentangle and the likely damages were very modest compared with the cost of trial.

• Court of Appeal: The cases of JPM and JB were remitted to the High Court for reconsideration of limitation in light of UKHL 6 and the related House of Lords guidance. The factual findings of Holland J were not disturbed.
• High Court: Irwin J reconsidered JPM and JB and determined them together with DVB and HC.