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

Disapplication of a limitation period under section 33 of the Limitation Act 1980 is exceptional. The claimant bears the burden of showing that it is equitable. The central question is whether delay has caused the defendant a real possibility of significant prejudice in investigating and defending the actual claim.

The court must assess the whole effective delay, including delay in giving sufficient notice of the real nature of the allegation. A general claim form does not relieve a claimant seeking discretionary relief from that obligation. A finding that a trial can be fair is relevant but not decisive. The court must not infer from findings on incomplete trial evidence that lost evidence would have made no difference.

CD alleged that, aged 12, he was raped by Brother James during a school trip in July 1990. He issued a broadly pleaded group claim in January 2006, but did not allege that he was personally raped until February 2014. The defendants could no longer locate two residential social workers who had known CD at the relevant time and had made contemporaneous records.

His Honour Judge Gosnell, sitting in the Queen’s Bench Division, Leeds District Registry, disapplied the limitation period under section 33 of the Limitation Act 1980 and found the rape proved. The defendants appealed. The central issue was whether it was equitable to disapply the limitation period notwithstanding the delay and its effect on their ability to investigate and defend the allegation.

1. Appeal allowed. Lewison LJ, with whom Rafferty LJ agreed, held that the judge made errors of law in exercising the section 33 discretion. The Court re-exercised it and entered judgment for the defendants.

2. The purpose of limitation legislation is to protect defendants from stale claims and to promote the social benefit of timely litigation. Disapplication under section 33 of the Limitation Act 1980 is an exception. The claimant bears the burden. The decisive focus is whether delay creates a real possibility of significant prejudice to the defendant’s ability to investigate and defend the claim.

3. The relevant delay was not confined to the period before issue of the broadly framed claim form. A defendant needs sufficient notice of the actual claim in order to investigate it. CD did not disclose the allegation of rape until February 2014. The effective delay was therefore nearly 24 years. A claimant seeking discretionary relief must put the real case forward at the earliest opportunity.

4. A judge hearing merits and limitation issues together must not reason from a finding on necessarily incomplete evidence that disapplication is equitable. That overlooks the possibility that evidence lost through delay could have altered the result. Findings that CD’s evidence was inconsistent with contemporaneous documents and affected by the passage of time required reconsideration of the preliminary assessment of cogency.

5. The defendants suffered serious prejudice. They had lost the opportunity to call two potentially important witnesses whose expected evidence could have supplemented contemporaneous records inconsistent with CD’s late allegation. The allegation was uncorroborated, contradicted CD’s earlier statements, and was disclosed only in terse terms after years of litigation and legal advice. The existence of a potentially fair trial did not itself resolve the statutory balance.

6. Changes in the common law, or in the judicial interpretation of a statute in force throughout the relevant period, have retrospective effect. They were not a legitimate reason to refuse section 33 relief. That separate ground of appeal failed, as did the complaint concerning CD’s evidence about the defence expert.

• Court of Appeal (Civil Division): Allowed the defendants’ appeal and reversed the disapplication of the limitation period: [2018] EWCA Civ 2342 .
• Queen’s Bench Division, Leeds District Registry: HHJ Gosnell disapplied the limitation period under section 33 of the Limitation Act 1980 and found that CD had been raped.