LXA & Anor v Willcox

When deciding whether to disapply the primary limitation period in a historic abuse claim, the court must assess whether a fair trial remains possible. The central consideration is the forensic effect of delay, particularly any evidential prejudice to the defendant, rather than the length of delay alone. The claimant must establish why the delay should be excused, but the defendant bears an evidential burden of showing that delay has weakened the defence evidence. Criminal convictions may make liability evidence highly cogent, while causation, injury and quantum may still require careful assessment. Where the evidence remains sufficiently reliable and the competing prejudice favours allowing the claim to proceed, the court may exercise its discretion under section 33 of the Limitation Act 1980.

The claimants, adopted siblings, sought damages for physical and sexual abuse committed by their adoptive parents during their childhoods. The first defendant died after conviction and was represented by his estate; the second defendant was convicted of child cruelty and did not attend the civil trial. The proceedings were issued many years after expiry of the primary limitation periods. The principal preliminary issue was whether the court should disapply section 11 of the Limitation Act 1980 under section 33. The court also determined liability, causation and damages, including the effect of the criminal convictions and the reliability of the historic evidence.

1. Trial in the absence of the defendant. CPR 3.1A may apply even where an unrepresented party is absent. The judge may explore matters raised by that party with the represented party’s witnesses, provided the judge remains impartial and does not descend into the forensic arena. The claimant must still prove the claim. The approach in PS v BP [2018] EWHC 1987 (Fam) was materially helpful.
2. Limitation. The discretion under section 33 of the Limitation Act 1980 is unfettered, subject to the statutory checklist and all the circumstances. The decisive question is the effect of delay on the cogency of the evidence and whether the defendant has suffered evidential or other forensic prejudice. The length of delay is relevant but is not itself determinative.
3. The claimant bears the burden of persuading the court to exercise the discretion, but the defendant has an evidential burden of showing that the defence evidence is, or is likely to be, less cogent because of the delay. Liability evidence supported by criminal convictions was cogent. The court could determine historical psychiatric injury and financial loss despite the passage of time.
4. The court considered the claimants’ reluctance to disclose abuse by their adoptive parents to be a good reason for the delay. It was satisfied that a fair trial remained possible and disapplied section 11 in both claims.
5. The criminal convictions established the relevant offences under section 11 of the Civil Evidence Act 1968, subject to the statutory opportunity to prove the contrary. The defendants’ materials did not discharge that burden. Liability was therefore established, and the court also found, on the balance of probabilities, that the first defendant had raped BXL.
6. For aggravated features of abuse, the appropriate approach was to include an enhancement within the award for pain, suffering and loss of amenity rather than make a separate award of aggravated damages. The court awarded damages, including past and future losses and treatment costs, to both claimants.

Not stated in the judgment. This was a first-instance trial in the High Court.