B v Cager

In a claim for damages arising from historic sexual assaults, the court may disapply the limitation bar where, considering all the circumstances, a fair trial remains possible and it is equitable to do so. Relevant considerations include the reasons for delay, its effect on evidential cogency, and prejudice to the defendant.

Absence of physical resistance does not, in the context of grooming and exploitation, establish consent. Damages for psychiatric injury, injury to feelings and aggravated damages must be assessed to avoid double recovery. Aggravated damages are compensatory, not punitive.

The claimant sought damages from the defendant, a relative, for alleged sexual abuse, false imprisonment and assaults occurring over a six- to seven-year period when the claimant was aged 14 to 20. The defendant denied the abuse, asserted that the claim was out of time and challenged the amount claimed, but had not filed a defence.

The court considered limitation, whether the assaults occurred, consent, the effect of the defendant’s criminal convictions, and quantum, including psychiatric injury, injury to feelings, aggravated damages, education-related losses and future treatment costs.

1. Limitation. The court treated the limitation issue as raising a direction under section 33 of the Limitation Act 1980. Having regard to the factors in section 33(3), the delay was explained by the claimant’s fear, poor mental health and the criminal investigation and prosecution. The delay had not materially impaired the evidence, and the defendant identified no prejudice beyond losing a limitation defence. It was therefore equitable to direct that section 11 should not apply.
2. Liability and consent. On the balance of probabilities, the claimant’s detailed and consistent evidence was accepted. The defendant’s bare and inconsistent denial was rejected. The claimant did not consent to the sexual activity. Applying London Borough of Haringey v FZO [2020] EWCA Civ 180, absence of positive physical resistance was not, in the context of grooming, indicative of consent.
3. The court did not need to rely on section 11 of the Civil Evidence Act 1968, although the defendant’s convictions were admissible and the contrary burden had not been discharged.
4. Damages. General damages for psychiatric injury were assessed at £30,000. A separate award for false imprisonment was not justified. Injury to feelings and aggravated damages were assessed together at £25,000 because separating them would be artificial. The court guarded against double recovery and recognised that aggravated damages are compensatory rather than punitive, applying the approach in Thompson v Commissioner of Police of the Metropolis [1998] QB 498. No separate interest was awarded on that combined head, consistently with Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49.
5. Judgment was entered for the claimant in the sum of £87,748.79, inclusive of interest.