Raggett v Society of Jesus Trust of 1929 for Roman Catholic Purposes & Anor

When exercising the wide and unfettered discretion under section 33 of the Limitation Act, a court must assess limitation without treating established liability as eliminating prejudice caused by delay. It may nevertheless consider the cogency and strength of the claimant’s evidence, the reasons for delay and the delay’s practical effect on the defendant’s ability to contest liability and causation.

The requirement to decide limitation before liability describes the necessary logical analysis. It does not prescribe the order in which a judgment must record its conclusions. An appellate court examines the substance of the reasoning and intervenes only where the discretion was approached contrary to principle or fell outside its permissible ambit.

The respondent sought damages for sexual abuse allegedly committed by a teacher at his secondary school between 1969 and 1976. The appellants, who accepted vicarious responsibility for the teacher, denied the abuse and contended that the claim had become time-barred in 1979.

Swift J tried limitation and liability together. In [2009] EWHC 909 (QB), she found that the abuse occurred, held that the claim was out of time under sections 11 and 14 of the Limitation Act 1980, but exercised the section 33 discretion to allow it to proceed. Judgment was entered for damages to be assessed.

The appellants argued that the judge impermissibly determined liability before exercising the section 33 discretion and wrongly treated difficulties of proving causation as prejudicing only the claimant.

1. Appeal dismissed unanimously. The section 33 discretion is wide and unfettered. An appellate court asks whether the judge approached it in accordance with principle and reached a decision within the permissible ambit of the discretion. It should not prescribe the format of the judgment or determine the appeal by reference merely to the order in which conclusions were recorded.

2. The direction in KR v Bryn Alyn Community Ltd [2003] EWCA Civ 85 and AB & Others v Nugent Care Society [2009] EWCA 827 against deciding liability before limitation concerns the logical basis of the section 33 assessment. A judge must not reason that, because abuse has been proved, delay caused no prejudice. The judge must instead assess the reasons for delay, the cogency and strength of the available evidence, the prejudice caused to the defendant and all other relevant circumstances. That direction does not impose a formulaic template for writing the judgment.

3. Swift J followed that approach in substance. Although her findings on abuse appeared earlier in the written judgment, her section 33 reasoning independently assessed the cogency of the evidence and the prejudice caused by the deaths, illness and unavailability of potential witnesses. She did not infer an absence of prejudice merely from her finding that the abuse occurred. The strong corroborative evidence and the limited practical effect of the delay on the defence made her conclusion properly open to her.

4. As a general matter, a defendant may suffer prejudice from delay in determining causation even though the claimant bears the burden of proving loss. On the particular facts, however, the judge was entitled to conclude that any causation prejudice was likely to operate against the claimant. The claimant sought substantial damages for effects allegedly extending across his education, career, relationships and psychiatric health, and bore the difficult burden of proving those effects from the available history and evidence.

1. Court of Appeal (Civil Division): The appellants’ appeal was dismissed unanimously. The court upheld the exercise of the section 33 discretion and the judgment on liability.
2. High Court, Queen’s Bench Division: In [2009] EWHC 909 (QB), Swift J found that the abuse occurred and that the claim was time-barred under sections 11 and 14 of the Limitation Act 1980. She exercised the section 33 discretion to permit the action to proceed and entered judgment for damages to be determined.