Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus)

When deciding whether to disapply a primary limitation period in a historic abuse claim, the court must balance all the circumstances, including the length and explanation of delay, evidential prejudice, the parties’ conduct, and proportionality. The claimant bears the burden of showing that allowing the claim to proceed would be equitable, while the defendant bears an evidential burden concerning prejudice. The death of the alleged perpetrator and the loss of potentially relevant records may substantially impair a fair trial, even where the claimant has corroborative evidence. A satisfactory personal explanation for delay may not sufficiently temper that prejudice. Insurance and litigation costs are not automatically relevant. Where the balance does not favour the claimant, the limitation period remains effective and the claim is dismissed.

The claimant brought a representative claim against the Order for vicarious liability for alleged sexual assaults committed by a former voluntary teacher at its boarding school in 1973 and 1974. The alleged perpetrator had died in 1999. The claim was issued in 2013, after expiry of the applicable limitation period, and the claimant sought its disapplication under section 2D of the Limitation Act 1939.

The court considered the claimant’s delay, the death of the alleged perpetrator, missing records and documents, the claims for psychiatric and consequential loss, the parties’ conduct, insurance, charitable status and proportionality. The central issue was whether it would be equitable to allow the action to proceed despite the substantial delay.

1. Applicable statutory framework. The claim was subject to the primary limitation period under section 2A of the Limitation Act 1939, as amended by the Limitation Act 1975. The power to disapply that period was in section 2D. The later Limitation Act 1980 provisions were materially equivalent, but the transitional provisions preserved the application of the 1939 Act.
2. Approach to the discretion. The claimant bore the burden of showing that disapplication was equitable. The court had to consider all the circumstances, including the statutory factors, the length and reasons for delay, the cogency of the evidence, the parties’ conduct, and the proportionality of continuing the claim. The evidential burden on the defendant was readily discharged where the delay created a realistic prospect of evidential prejudice.
3. Assessment after a full trial. Where limitation is determined with the substantive issues, the court must avoid using its findings on liability or causation as though they demonstrated what would have happened at an earlier trial. The court may nevertheless take account of firm conclusions reached on the claimant’s reasons for delay and the practical effect of missing evidence. The limitation issue remains distinct from the merits.
4. Prejudice. The death of the alleged perpetrator significantly impaired the defence. He was the only person, apart from the claimant, present during the alleged assaults, and his absence restricted the proper testing of the evidence. Corroborative evidence did not remove that prejudice. The absence of personnel records, therapy records and destroyed diaries created a realistic prospect of further prejudice on liability, causation and damages.
5. Other considerations. The claimant’s explanation based on concern for his mother did not sufficiently temper the prejudice, particularly given his earlier contacts with the Order and the unexplained delay thereafter. The absence of insurance and the potential costs of litigation were not relevant factors in the balancing exercise on these facts. Charitable status did not remove the Order’s potential vicarious liability.
6. Disposition. It was not equitable to allow the action to proceed. The discretion under section 2D was not exercised, and the claim was dismissed.

The judgment records an earlier interlocutory appeal concerning expert and witness evidence:

• High Court: William Davis J’s interlocutory judgment was [2015] EWHC 2532 (QB).
• Court of Appeal: the appeal concerning Dr Kennedy’s evidence was dismissed in part, while the appeal concerning the supplementary witness statement was allowed: [2017] EWCA Civ 1016.
• High Court: the present trial judgment dismissed the claim.