There has been a recent flurry of decisions on limitation in the context of claims for sexual abuse.
Under section 33 of the Limitation Act 1980, there is judicial discretion to disapply the limitation rules in personal injury claims. The judge should only exercise such discretion in favour of claimants if a fair trial is still possible: the judge will look at the reasons for the delay, the cogency of the evidence, and whether any detriment to the defendant prevents a fair trial.
In crime consent is not a defence to an offence under the Sexual Offences Act 2003, whereas in tort consent is a complete legal defence to the tort of trespass to person.
There are three recent school cases which deal with the issue of consent, two of which highlight the importance of distinguishing between the consent in crime and in tort.
There has been much recent comment on the Supreme Court decisions in the Morrisons and Barclays cases. Two other recent judgments in abuse cases are also worthy of consideration. The cases as demonstrated below show that whilst the scope of various liability has increased over time, the issue is very much assessed on a case by case basis and still has its limits.
A recently published IICSA research report has identified a lack of confidence in staff, children, parents and local authorities in identifying ‘grey areas’ of child sexual abuse; varied reporting practices of child sexual abuse between residential schools despite following the same statutory guidance; and schools reporting difficulties in escalating referrals to local authorities.
The Titus Trust (formerly known as the Iwerne Trust) has reached a settlement with three men who reportedly suffered appalling abuse by John Smyth QC during the 1970s and 80s.
Smyth was chairman of the Iwerne Trust from 1974 until 1981. The Iwerne Trust operated Christian holiday camps during which the abuse allegedly occurred.
The Charity Commission has recently published an awaited report, following a statutory Inquiry commenced in 2018, into Save the Children UK’s response to sexual misconduct complaints against two former senior executives made in 2012 and 2015.
It has been reported that Aston Villa and Leicester City have settled sexual abuse claims concerning five victims of a football scout, Ted Langford, who worked as a part-time football scout in the Midlands in the 1970s and 1980s.
It is understood that the settlements were reached just a matter of weeks before the matters were due to be heard by the High Court.
Strike-out refused in case involving alleged pure omission
The implications of the Supreme Court judgment in CN & GN v Poole BC are slowly being decided.
In CN, Lord Reed (giving the single unanimous judgment of the Supreme Court) emphasised the distinction between causing harm (‘positive acts’) and failing to confer a benefit (‘pure omissions’). A defendant owes a duty of care if it causes harm, or if the matter falls under one of three exceptions. A defendant will not owe a duty of care (the ‘no duty’ rule) if the case involves a pure omission and none of the exceptions applies.
The main questions since CN are (1) how to differentiate between causing harm and failing to confer benefit, (2) how the courts will look at the exceptions, and (3) whether the courts are prepared to strike out some cases.
The third question has recently been considered in the High Court in the case of Chief Constable of Essex Police v Transport Arendonk BVA  EWHC (QB).
A claim was brought by the owner of cargo stolen from a lorry parked in a secluded lay-by at night. The lorry had been left there whilst the police held the driver on suspicion of drink driving. The owner argued that the police were liable, because they had assumed responsibility for the cargo – in that they knew about theft of cargo in the area – but took no step to prevent it. The police force argued it had no duty of care as the loss resulted from the acts of third parties and it had not assumed responsibility for the cargo. The Recorder rejected the police’s request for a strike out, found that it was not clear that the police owed no duty of care, and ordered a trial. The police appealed. On appeal, Mrs Justice Elizabeth Laing agreed with the Recorder. She found that there was no conclusive authority to determine this case. She reviewed the other authorities, many of which had been considered in CN, and decided it would not be right to strike out the claim without making findings of fact. A full trial will be required.
Until more cases have been decided about pure omissions and the exceptions to the ‘no duty’ rule, courts are unlikely to strike out cases
Geneviève Rich, Associate, BLM
Booking a holiday and finding a place to stay can be difficult enough at the best of times. It’s not enough just to see if there is a gym, a swimming pool and good restaurants and other amenities but to also consider if the accommodation is a safe haven and not managed, run or staffed by inappropriate personnel.
An example of the risk can be seen from the recent conviction of an ex-Army intelligence officer and Manchester hotelier, for a second time for abusing children at his £2m B&B. Saleem targeted children after they checked into his hotel with their parents near Manchester Airport. He had been previously jailed in October 2018 after attacking two sisters aged four and eight. He has been jailed again after a nine year old girl made a complaint following his first sentence. Saleem said his conviction was ‘unjust and tyrannical’.
A Primark security guard has been jailed after being found guilty of the rape and sexual assault of four underage girls who were found shop lifting from the store. Zia Uddin, who worked at the chain’s Kingston upon Thames store, caught the girls shoplifting then abused his authority by telling them he would let them go without informing the police or their parents about their thefts if they performed sexual acts on him.