Limitation, s33 discretion and moral culpability

The ability of a claimant to bring a claim many years after abuse occurred is an issue which remains contentious and has again been the subject of recent judicial determination.

In the case of GH v (1) The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016], His Honour Judge Gosnell concluded that when determining the court’s authority to exercise its discretion under s33 of the Limitation Act 1980, moral culpability of a defendant’s alleged actions should not be taken into consideration.

In this case GH asked the court to exercise discretion under s33, notwithstanding a fourteen year delay between the expiry of the limitation period and the issue of proceedings and a further eleven year delay to the date of trial.

The court ordered that the limitation period be disapplied, allowing the case to proceed.

It was held that whilst the delay was long by any standards, and whilst HH Judge Gosnell did not feel confident to reach a finding of fact as to GH’s intention for the delay, there was still the opportunity for a fair trial based on the cogency of evidence for the following reasons:

  • The attendance and effectiveness of potential defendant witnesses who, due to the lapse in time were now either deceased or unavailable to attend trial, was not guaranteed had the case been brought within the limitation period;
  • The documentation in this case was both extensive and illuminating and the documentation no longer available to the defendants would have had little impact on their investigation into the allegations.

Counsel for GH had argued that the high level of moral culpability on the part of the perpetrators of the abuse and the defendant organisation, also potentially liable, should benefit a claimant when balancing the competing interests of the parties under s33.

Whilst the court accepted that there could be no doubt that the perpetrators were morally culpable and the defendants were open to criticism for the way they investigated the allegations of abuse prior to the police prosecution, the court was not convinced that should weigh in GH’s favour. The court observed that there would always be a high level of moral culpability attached to allegations of child abuse and child sexual abuse, and if that moral culpability was to weigh in a claimant’s favour it was difficult to see how a defendant would ever succeed on the s33 issue where allegations of this nature were being made.

HH Judge Gosnell noted that “the system of compensation for the commission of a tort in this country does not involve an assessment of moral culpability.” He further added that the courts have not previously paid particular attention to the strength or weakness of a case (unless very weak) when exercising an equitable discretion under s33. Therefore, it would be difficult to consider submissions on the moral culpability of defendants when deciding whether to excuse a claimant for not issuing proceedings within the limitation period.

Whilst GH was successful in having discretion exercised in his favour with regard to limitation, the claim was ultimately dismissed because due to poor credibility and inconsistencies in the evidence, GH failed to prove on the balance of probabilities that he had suffered the alleged sexual and physical abuse.

This judgment is part of a series of related claims which proceeded to trial late last year. It shows yet again the difficulties which arise in pursuing and defending non-recent cases of sexual abuse. This was a novel argument which has attracted some legal comment. The comments about the cogency of the evidence even if the claim had been brought in time are also interesting and tend to suggest that if a defendant wishes to rely on lack of witnesses or documents as evidence of prejudice then it is not enough to just say that evidence is no longer available, but it is necessary to also show that if it had been available it would have made a material difference to the case.

sws1  Sabine Wozniak, Trainee Solicitor at BLM

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