FXF v Ampleforth Abbey Trustees

The discretion under section 33 of the Limitation Act 1980 is broad and must be exercised by balancing all relevant prejudice. The statutory factors guide, but do not fetter, the court’s evaluation. The claimant bears the overall burden of showing that it would be equitable to disapply the limitation period, while the defendant bears the evidential burden of showing diminished cogency. A fair trial is necessary but not sufficient. The court must assess what evidence would have been available earlier and should determine limitation before substantive issues where both are tried together. In this case, the death of the alleged perpetrator, substantial gaps in the claimant’s memory and the absence of effective corroboration caused very substantial prejudice. The delay of more than 32 years was not sufficiently justified. The limitation period was therefore maintained and the claim dismissed.

The claimant sought damages for alleged sexual abuse by Father Damian Webb in 1968 or 1969, when she was aged four or five. The defendants admitted vicarious liability if the abuse were proved, but relied on limitation and the prejudice caused by Father Webb’s death in 1990.

The primary limitation period expired in January 1985. Proceedings were issued in September 2017. The claimant sought a direction under section 33 of the Limitation Act 1980 disapplying the statutory time limits. The central issues were whether the delay had materially diminished the cogency of the evidence, whether the reasons for delay justified proceeding, and whether a fair trial remained possible.

1. The claim was dismissed. The court refused to exercise its discretion under section 33 of the Limitation Act 1980 to disapply the primary limitation period.
2. The discretion was unfettered. The court had to consider all relevant circumstances, including the factors in section 33(3), and conduct a balancing exercise focused on prejudice. The claimant bore the overall burden of showing that it would be equitable to proceed. The defendants bore the evidential burden of showing that the delay had diminished the cogency of the evidence.
3. The question was whether it was fair and just for the defendants to meet the claim despite the delay. The possibility of a fair trial was necessary but not sufficient. The court had to consider what evidence would have been available had the claim been brought earlier.
4. Where limitation and liability are tried together, the court should determine limitation first and should avoid relying on findings reached from evidence which could not adequately be tested as though they demonstrated that the claim would have succeeded earlier. The same difficulty did not arise to the same extent where the claimant’s evidence remained insufficient even on the impoverished evidential record.
5. The claimant’s evidence concerned events more than 50 years earlier and contained substantial memory gaps. The alleged perpetrator could not give evidence, and the claimant’s mother, who might have addressed important matters, had died. The other evidence provided some support but did not cure the deficiencies. The defendants therefore suffered very substantial prejudice, particularly on liability.
6. The claimant had advanced genuine reasons for delay, including shame, embarrassment, family circumstances and other life events. Those reasons did not sufficiently qualify the prejudice. The abuse had not psychiatrically disabled her, and there was no good reason for failing to pursue the claim in 2013 or 2014 when she had obtained relevant information and legal advice.
7. The court admitted the IICSA report as potentially relevant, applying Rogers v Hoyle [2014] EWCA Civ 257, but found that it added little. The alleged pattern of institutional responses did not establish that a complaint had been made in this case.