EF v The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors

The discretion under section 33 of the Limitation Act 1980 is wide and unfettered, but the claimant bears the burden of showing that it is equitable to disapply the primary limitation period. The central consideration is whether a fair trial remains possible, having regard to the effect of delay on the cogency of the evidence and to all the statutory and other circumstances. Delay is relevant through its effect on the defendant’s ability to investigate and defend the claim. A claimant’s difficult background and the typical inhibitions associated with historic abuse may explain delay, but they do not automatically justify allowing the claim to proceed. Moral culpability does not materially alter the balance where the decisive issue is trial prejudice.

The claimant alleged that he had suffered physical and sexual abuse while detained at St William’s School between July 1972 and March 1973. He brought proceedings in October 2007 against organisations connected with the school. The defendants contended that the claim was outside the primary limitation period and that the court should refuse relief under section 33 of the Limitation Act 1980.

The court first considered whether the claim should proceed despite the expiry of the limitation period. It then made an alternative finding on whether the alleged abuse had been proved, without deciding causation or quantum.

1. The claimant bore the burden of persuading the court that it would be equitable to disapply the limitation period. The discretion under section 33 was unfettered, and the court had to consider all the circumstances, including the matters identified in section 33(3).

2. In assessing the reasons for delay, the court had to avoid deciding the substantive allegations before determining limitation. The alleged abuse was therefore assumed, or treated as potentially having occurred, solely for the limitation assessment.

3. The 29-year delay after expiry of the limitation period materially weakened the evidence. The principal alleged perpetrator who had died could not be questioned, a further potential witness could not be traced, and important contemporaneous records were missing. The claimant’s account also contained significant inconsistencies and the experts considered that the paucity of records made assessment of causation extremely difficult.

4. The claimant’s troubled background, alcohol and drug abuse, and the recognised reluctance of abuse victims to disclose such conduct were relevant considerations. In this case, however, the explanation for the delay was not advanced with sufficient force. The court was not satisfied that the claimant had been practically disabled from commencing proceedings by psychological injury.

5. The defendants’ alleged moral culpability did not significantly assist the claimant. The relevant prejudice was the effect of delay on the defendants’ ability to defend the claim, rather than the seriousness of the alleged conduct.

6. A fair trial was no longer possible. It was therefore inequitable to allow the claim to proceed and the claim was dismissed under section 33. Alternatively, after considering the evidence, the court found that the claimant had not proved on the balance of probabilities that the alleged abuse occurred. Causation and quantum therefore did not require determination.