KD v Gaisford

The court may disapply the limitation period for personal injury claims where, considering all the circumstances, a fair trial remains possible and it is equitable to do so. Delay is important principally for its effect on evidence, rather than as an independent bar. An earlier complaint, preserved contemporaneous accounts, and a conviction concerning the same facts may support the conclusion that a fair trial remains possible. In civil proceedings following a criminal conviction, Civil Evidence Act 1968, section 11 places the burden on the convicted person to prove that the offence was not committed. Loss of earnings may be awarded on a broad assessment where conventional calculation is impossible but a loss of opportunity is proved.

The claimant sought damages for personal injury and financial loss arising from a non-consensual sexual assault by the defendant in February 2000, when the claimant was aged 16. The claimant reported the incident immediately, but no prosecution followed at that time. The defendant was later convicted of offences against the claimant and others after a criminal trial in 2013. The civil claim was issued substantially out of time. The defendant did not attend the civil trial, and the court first considered whether to proceed in his absence, then limitation, liability and quantum.

1. Trial in the defendant’s absence. The defendant knew the trial date, his right to attend and his responsibility to make practical arrangements. He had taken no such steps and had not communicated any genuine inability to attend. The trial therefore proceeded under CPR 39.3. The defendant retained the right to apply to set aside the judgment under CPR 39.3(2)(a), subject to promptness, a good reason for non-attendance and a reasonable prospect of success.
2. Limitation. The claim was barred by the three-year period in section 11 of the Limitation Act 1980. Applying the guidance drawn from A v Hoare and Cain v Francis, the court considered all the section 33 factors, focusing particularly on the reasons for delay and whether a fair trial remained possible. The delay was not decisive in itself. The contemporaneous police accounts, the defendant’s interview, the later criminal conviction and the available expert psychiatric evidence meant that a fair trial remained possible. The section 33 discretion was exercised in the claimant’s favour.
3. Liability. Under section 11 of the Civil Evidence Act 1968, proof of the conviction required the defendant to prove, on the balance of probabilities, that he had not committed the offence. Following Hunter v Chief Constable of West Midlands Police and Others, undermining the conviction was an uphill task. The defendant did not discharge the burden. Non-consensual mutual masturbation was established.
4. Quantum. The court awarded £25,000 general damages, £8,320 for therapy and £15,000 for loss of earnings. Although conventional multiplier and multiplicand calculations were impossible, a loss of a chance of better educational and employment outcomes was recoverable in accordance with Cornell v Green. Judgment was entered for the claimant in the sum of £48,320.

The judgment records that the defendant was convicted at Lewes Crown Court in 2013. His appeal against conviction was dismissed, although the sentence was reduced from life imprisonment to 20 years. The present decision was a first-instance civil judgment.