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

Under section 33 of the Limitation Act 1980, the court has a wide discretion to disapply the primary limitation period where it is equitable to allow a personal injury claim to proceed. The central question is whether a fair trial remains possible, assessed by reference to all the circumstances, including the reasons for delay and its effect on evidential cogency. The merits should not ordinarily be determined before the limitation issue, because findings on disputed facts may distort the assessment of delay-related prejudice. In historic abuse claims, shame, repression and difficult personal circumstances may explain delay, but they are not automatically decisive. Here, the limitation period was disapplied, but the claim failed on the balance of probabilities because the claimant’s evidence contained significant inconsistencies and was contradicted by contemporaneous records.

The claimant alleged that he had suffered physical and sexual abuse while resident at St William’s School in 1985. The defendants denied the allegations and relied on the expiry of the limitation period. The claim was part of wider group litigation concerning the school. Earlier appellate decisions had determined that both the Middlesbrough defendants and the De La Salle Institute could potentially be vicariously liable, but liability in the individual claim remained to be proved.

The court first considered whether the limitation period should be disapplied under section 33 of the Limitation Act 1980. It then considered whether the alleged abuse occurred, while reserving causation and quantum because of its conclusion on liability.

1. The court applied the wide and unfettered discretion under section 33 of the Limitation Act 1980. The burden was on the claimant to show that it would be equitable to allow the action to proceed. The court had to consider all the circumstances, with particular regard to the matters listed in section 33(3).

2. The principal practical question was whether a fair trial remained possible. Delay mattered because, and to the extent that, it impaired the parties’ ability to investigate and present reliable evidence. The claimant’s reasons for delay, including alleged shame, embarrassment and repression of the abuse, could provide a good explanation, but required some assessment in the individual case.

3. The court accepted the guidance in A v Hoare [2008] UKHL 6 and the subsequent guidance summarised in B & Others v Nugent Care Society [2009] EWCA Civ 827. It was important not to determine the substantive issues before deciding limitation, since doing so would put the cart before the horse. The court also treated the analysis in Gestmin SGPS S.A. v Credit Suisse (UK) Limited and others [2013] EWHC 3560 (Comm) as applicable to the assessment of long-term recollection.

4. Although the claim was issued fourteen years after expiry of the limitation period, the evidence concerned a relatively narrow factual matrix. The principal defendant witness denied that any abuse had occurred, and the contemporaneous social-care records were extensive and useful. The missing material was unlikely to have a significant effect on the fairness of the trial. The limitation period was therefore disapplied.

5. On the merits, the claimant bore the burden of proving the alleged abuse on the balance of probabilities. His evidence contained unexplained inconsistencies about the duration, frequency and sequence of events. Contemporaneous records contradicted important parts of his account, including the alleged overdose and the timing of events. The court found him unreliable and dismissed the claim. Causation and quantum did not require determination.

The judgment records that the claim formed part of group litigation concerning St William’s School.

• Court of Appeal: the appeal from the preliminary vicarious-liability decision was dismissed in [2010] EWCA Civ 1106.
• Supreme Court: the appeal was allowed in [2012] UKSC 56, holding that both the Middlesbrough defendants and the De La Salle Institute could potentially be vicariously liable.
• High Court (Queen’s Bench Division): the limitation period was disapplied, but the individual claim was dismissed on the merits.