Archbishop Bowen & Anor v JL

When deciding whether to disapply the limitation period under section 33 of the Limitation Act 1980, the court must assess all the circumstances and balance the parties’ prejudice. The central question is whether it is equitable to require the defendant to meet the claim despite the delay.

Where limitation and liability are tried together, the court must consider the evidence as a whole, including adverse findings against the claimant. It must not infer from a finding that the claim succeeds that delay caused no prejudice. Equally, it should not disregard findings showing that the claimant’s case failed or that the stated reasons for delay rested on false premises. Evidential prejudice concerns the defendant’s ability to investigate and defend the claim, particularly where delay has removed a central witness.

JL recovered £20,000 in the Manchester County Court for sexual assaults committed by a priest between 1984 and 1987. The judge rejected the much larger claim concerning later conduct, finding that the adult sexual relationship had been consensual. Although the surviving assaults were between 21 and 23 years out of time when proceedings began, the judge disapplied the limitation period under section 33 of the Limitation Act 1980.

The Archbishop and the Scout Association appealed on limitation and five other grounds. The limitation issue was whether the judge had misunderstood the authorities, assessed the wrong period of delay, failed to relate the reasons for delay to his factual findings, and underestimated the prejudice caused by the priest’s death.

1. Appeal allowed unanimously. The judge had erred in disapplying the limitation period. His order was set aside and judgment was entered for the Archbishop and the Scout Association. It was unnecessary to decide the remaining grounds of appeal.

2. Section 33 of the Limitation Act 1980 confers a broad discretion. The question is whether allowing the action to proceed would be equitable after considering all the circumstances and balancing the parties’ prejudice. An appellate court should interfere only where the judge misdirected himself, misunderstood significant facts or reached a wrong conclusion on the permissible appellate standard.

3. Burnett LJ held that the judge misunderstood B v Nugent Care Society [2009] EWCA Civ 827. Where limitation and the merits are tried together, the prohibition is against reasoning that the claimant has succeeded and therefore delay caused no prejudice. It does not require the court to ignore findings reached at trial. The court must make an overall assessment of the evidence and the potential effect of delay upon it. Ryder SPT and Lewison LJ agreed.

4. The relevant delay was between 21 and 23 years, rather than between nine and 23 years. The judge had rejected all alleged assaults after university. That finding also undermined the asserted explanation that therapy revealed the effects of prolonged non-consensual abuse. The therapeutic account rested on false premises, including that abuse began at 13 and continued non-consensually throughout adulthood.

5. The convictions did not remove the appellants’ evidential prejudice. Under section 11 of the Civil Evidence Act 1968, the appellants bore the burden of disproving the assaults. Consent remained central, and the deceased priest’s evidence about the circumstances of the touching and the alleged years of emotional manipulation could have been highly material. His absence was especially prejudicial because the judge found JL unreliable in significant respects.

6. The prejudice to the appellants from disapplication significantly outweighed the prejudice to JL. The claim was therefore time-barred.

1. Court of Appeal (Civil Division): By judgment dated 21 February 2017, the court unanimously allowed the appeal, set aside the order disapplying limitation and entered judgment for the Archbishop and the Scout Association: [2017] EWCA Civ 82.
2. Manchester County Court: His Honour Judge Platts found both defendants vicariously liable for pre-university sexual assaults, awarded £20,000, disapplied the limitation period under section 33 of the Limitation Act 1980, and apportioned liability equally. No citation is stated.