CD v The Catholic Child Welfare Society (Diocese of Middlesbrough) & Anor

In historic abuse claims, the discretion under section 33 of the Limitation Act 1980 is wide and unfettered. The central question is whether, having regard to all the circumstances, it is equitable to allow the claim to proceed. The court must focus on the effect of delay on the cogency of the evidence and the possibility of a fair trial, while considering the statutory factors and the claimant’s reasons for delay. The court should not decide the substantive allegations before determining limitation. Moral culpability is generally neutral in the balancing exercise. Compensation for injury to feelings in an assault claim should ordinarily form part of general damages, rather than a separate award of aggravated damages.

The claimant alleged that he had been sexually and physically abused while resident at St William’s School between 1989 and 1994. Proceedings were issued in 2006, after the primary limitation period had expired. The defendants argued that the delay caused evidential prejudice and that the claim should be barred. The claimant sought an order under section 33 of the Limitation Act 1980.

The court first determined limitation, then considered the allegations, causation and damages. The central issues were whether a fair trial remained possible, whether it was equitable to disapply the limitation period, and how any award for injury to feelings should be characterised.

1. Limitation. The claimant bore the burden of showing that it would be equitable to allow the action to proceed. Section 33 conferred a wide and unfettered discretion requiring consideration of all the circumstances, including the statutory factors in section 33(3).
2. The court should not determine the substantive allegations before deciding limitation. For the purpose of assessing delay and its explanation, it was permissible to assume that the abuse may have occurred. The court had to avoid deciding the merits prematurely.
3. The material delay after expiry of the limitation period was just under seven years. The claimant’s explanation, namely shame, embarrassment and suppression of the memories, was genuine. The additional delay caused by the earlier litigation and criminal proceedings was not fairly attributable to him.
4. The missing evidence was limited and largely peripheral. The allegation of rape was unlikely to have been documented, and the available evidence established that the opportunity for it to occur existed. A fair trial remained possible, and the delay had not caused material evidential prejudice. The relevant limitation provisions were therefore disapplied.
5. Moral culpability did not materially assist the claimant in the section 33 balancing exercise. The decisive consideration was the effect of delay on the defendant’s ability to defend the claim, not the moral blameworthiness inherent in allegations of deliberate abuse.
6. The claimant proved, on the balance of probabilities, one rape by Brother James and several slaps by Brother James and Mr Hartnett. The allegations against Mr Black were not proved. The foam-bat sessions were not an assault or breach of duty, and the photographs were insufficiently serious to sound in damages for trespass to the person and consequent personal injury.
7. Following Richardson v Howie, compensation for injury to feelings, humiliation and distress in an assault case should ordinarily be included in general damages. A separate aggravated-damages award was inappropriate except possibly in a wholly exceptional case. The claimant was awarded £14,000 general damages, including £2,000 for injury to feelings.