F And S vTH

The discretion under section 33 of the Limitation Act 1980 is unfettered and must be exercised having regard to all the circumstances. In historic abuse claims, the court must balance the claimant’s reasons for delay and the strength of the claim against the defendant’s ability to investigate and defend it fairly. Defendant prejudice concerns more than losing a limitation defence. It includes the loss or weakening of evidence, including evidence relevant to liability and damages. A compelling claim may favour allowing proceedings to continue, but a long delay, unexplained inactivity after disclosure, unreliable evidence and difficulties in separating the effects of abuse from other causes may make a fair trial impossible. In that event, the court should refuse to disapply the limitation period.

Two brothers claimed damages for historic sexual abuse allegedly perpetrated by a priest between approximately 1979 and 1986. The defendants, sued as personal representatives of the relevant bishop, accepted potential vicarious liability but disputed both the occurrence of the abuse and the claimants’ entitlement to proceed out of time.

The primary limitation periods had expired. The claimants sought an extension under section 33 of the Limitation Act 1980. The central issues were whether the evidence proved the alleged abuse on the balance of probabilities and, if so, whether a fair trial remained possible after the substantial delay.

1. The claims were dismissed. The evidence was insufficient to establish on the balance of probabilities that either claimant had been abused.
2. The discretion under section 33 of the Limitation Act 1980 was unfettered. It had to be exercised in accordance with the principles in A v Hoare [2008] 1 AC 844 and with regard to all the circumstances, including the reasons for delay and the prejudice caused by delay.
3. Following B v Nugent Care Society [2010] 1 WLR 516 and Cain v Francis and McKay v Hamlani [2009] QB 754, the strength and cogency of the claimant’s evidence were relevant both to the merits and to the assessment of prejudice. The court had to consider what evidence might have been available had the claim been brought earlier, rather than merely assessing the evidence available at trial.
4. On the facts, both claimants had substantial difficulties with recollection, reliability and consistency. Important evidence was unavailable, including the alleged abuser’s evidence, and the expert evidence concerning causation and quantum was materially weakened by delay. The claimants had also delayed further after they were able to disclose the alleged abuse, without a satisfactory explanation.
5. Even assuming that abuse had occurred, the court concluded that a fair trial was no longer possible. It was also impossible fairly to assess the alleged financial losses and to disentangle the effects of any abuse from other significant events and pre-existing difficulties. The section 33 discretion was therefore not exercised in the claimants’ favour.