Case No: A2/2007/0249
Neutral Citation Number: [2008] EWCA Civ 795
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION 
MANCHESTER DISTRICT REGISTRY
(MR JUSTICE HOLLAND)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 17th June 2008

Before:

LORD JUSTICE MAY
LORD JUSTICE KEENE
and
LADY JUSTICE SMITH DBE
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Between:

	AB & ORS
	Appellant	
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THE NUGENT CARE SOCIETY	
Respondent	

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Mr R Maxwell QC and Ms A Weereratne (instructed by Messrs Abney Garsden & McDonald) appeared on behalf of the Appellants.

Mr E Faulkes QC and Mr N Fewtrell (instructed by Messrs Hill Dickinson) appeared on behalf of the Respondents.
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Judgment

Lord Justice May:

1.	Since Holland J, before his recent retirement, decided the issues relating to limitation in the two matters that are before the court, the relevant legal landscape has changed considerably.  The change was made by the recent decision of the House of Lords in A v Hoare [2008] 2 WLR 311.  

2.	I can refer to the facts briefly.  A more extended version of the facts may be found in Holland J’s judgment, which is at [2006] EWHC 2986 QB.  Each of the now adult claimants claims damages from the proprietors of the care home in which, as young teenagers, they spent fairly short periods after convictions as juveniles.  The first of the claimants was there between May 1967 and November 1968.  He claims to have been sexually assaulted by an employee of the home, James Hepburn, when he was working in the horticultural department.  The second of the claimants, JB, was in the home from August 1971 to November 1972.  He claims to have been the object of serious physical abuse and arbitrary corporal punishment by the bricklaying instructor, F J Colquitt.  He also complains of three instances of sexual groping by a house master, James McEvoy.  McC started his proceedings on 8 October 2001.  JB started them on 22 January 1998, many years outside any primary limitation period if that were to start from the dates of the assaults or when each of the claimants became adult at the age of 18.

3.	The claims were framed in systemic negligence against the care home.  The cases for extending the limitation period were considered by Holland J under sections 11 and 14 of the Limitation Act 1980.  He held that each of the claimants’ date of knowledge for the purpose of section 14 was outside the three year limitation period from the date when they began proceedings.  He then proceeded to consider whether the court should in its discretion extend the periods under section 33 of the 1980 Act.  In the case of these two claimants he declined to do so.  The main, short reason for that decision included that the claims had to deal with systemic negligence taking place many, many years ago and the defendants would be unduly prevented from having a fair trial if they were required to have to face up to that.  A feature of these cases was that the individuals against whom the allegations were made had been the subject of criminal proceedings which had been stayed as an abuse.  There was a third case, no longer before the court because it has been compromised, in which Holland J did extend the limitation period under section 33.  In that case the persons who had committed the assaults, which were grave, had been convicted.

4.	The impact of the decision in A v Hoare is two‑fold.  First it was decided, departing from Stubbings v Webb [1993] AC 498, that section 11 of the 1980 Act extends to a claim for damages in tort arising from trespass to the person, including sexual assaults.  Previously the understanding was that this was not so, so that a claim for damages which was outside a six-year limitation period was unextendable.  This means that claimants may not be limited to claims in negligence but can claim that an employer is vicariously liable for the assaults of an employee.  This in turn may feed through to have an effect on any section 33 decision.  I pause to say that each of the claimants present before the court now has the benefit of that first part of the Hoare decision, their cases heretofore not having been framed in vicarious liability of the assaults, sexual or otherwise, which they allege.  Secondly the House of Lords decided that, in applying section 14(2) of the 1980 Act, the court was not to ask whether a claimant’s psychological state in consequence of the injury was such that he could not reasonably be expected to bring proceedings, that the correct approach was to ascertain what the claimant knew about the injury he had suffered and any knowledge about the injury which was to be imputed to him under section 14(3) of the Act, and then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify instituting proceedings with any question as to the effect of psychological factors on the claimant’s knowledge of injury or his ability to issue proceedings being a matter for consideration under section 33 of the Act; and that, accordingly, since the nature of the assaults which the claimant alleged to have suffered was such that on a true construction of section 14(2) his date of knowledge would have arisen upon his discharge from the third defendant’s detention centre in 1977, his claim was liable to be barred under section 11 but would be remitted to the judge for a fresh consideration under section 33.

5.	In reaching that decision reference was made to the decision of Geoffrey Lane LJ in McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073 and the decision of this court in KR v Bryn Alyn Community (Holdings) Limited [2003] QB 1441 was disapproved.  This, in short, means that Holland J’s decision under section 14(2) was more palpably correct in the present cases than it might otherwise have appeared, since knowledge arising from an appreciation of psychological factors is not now centrally material to that decision.  But it also means that his section 33 decision proceeded on a partly incorrect and certainly incomplete basis.  So much is accepted by Mr Faulkes QC on behalf of the defendants, and it follows that the claimants’ appeals must be allowed to the extent at least of setting aside Holland J’s decision under section 33 and having the matter reconsidered.  The only question for determination for immediate purposes is whether that matter should be remitted to the judge, who, despite his retirement, as we understand it, remains seized of the case and able to do so, or whether this court should re‑decide the matter itself.

6.	Both the parties urge the court to do the second of these; that is, to reconsider the matter ourselves and decide the section 33 point one way or another.  I say straight away that I, and, I believe, the other members of the court, are not prepared to do that and I shall give brief reasons for my adherence to that position in one moment.  Mr Maxwell, on behalf of the claimants, tells us that this hearing before Holland J began as a trial, Holland J having initially decided not to take the limitation issue as a preliminary issue, but he was persuaded to do so during the course of the trial, having heard evidence from the claimants and having heard medical expert evidence on both sides, and one, at least, lay witness on behalf of the defendants.  As Mr Maxwell points out, the judge decided that the claimants’ evidence as to the fact of the abuse was credible and he decided, therefore, in the course of his judgment that the abuse had taken place.  Mr Maxwell also submits that this court would have no difficulty now in deciding on the facts which the judge did find that the abuse was by employees of the defendants for whom the defendants now were being regarded as vicariously liable, and he submits in those circumstances that this court should proceed upon the material that the judge found and upon the material which was before him to consider the section 33 point.

7.	He urges this as an economic means of proceeding with this case and Mr Faulkes agrees with that last point.  Mr Faulkes, for his part, supporting the proposition that this court should decide the section 33 point, submits that it is possible to do so.  He accepts that the law has changed but he submits that there is nothing in those changes which make it more difficult for this court to exercise the discretion under section 33 than would Holland J.  He would go on to submit that the change of emphasis should not result in a different conclusion, not least because he submits that a fair trial in each of these cases would not be possible because of difficulties which the defendants have and have acknowledged in dealing evidentially at all with the fact of the abuse and because of difficulty of challenging any consequences of the abuse.  I for my part have sympathy with these submissions in general terms but do not consider that that is the right course.

8.	This court has not heard the oral evidence, and what is more the oral evidence has not in its entirety been directed towards the legal landscape, which has now changed.  Holland J for his part did not address this section 33 point with a view to each of the two changes which the case of A v Hoare has effected.  Indeed, as things presently stand today, there is no pleaded case of vicarious liability and certainly the judge has not addressed in the section 33 context the question which may well be found, that these defendants are vicariously liable for the sexual assaults which the claimants allege.  The judge also did not address section 33 in the light of the now admissible impact of any inhibition to complain or bring proceedings, which is now, as Hoare clearly indicates, available as an ingredient to enhance the section 33 decision.  In that context the judge did address the question of inhibition in McC’s case, in the context of his consideration of section 14 and his knowledge of significant injury.  The judge did say at paragraph 26b of his judgment that, prior to October 1998, McC was reasonably inhibited from obtaining medical advice.  That inhibition is common and understandable, and he correctly adopted the joint medical opinion to that effect.  He said that the inhibition can only be a factor for his consideration and in this case he did not regard it as decisive.  That was, as I say, in the context of his consideration of section 14.  When it came to section 33 the judge did mention the inhibitions on complaint embedded in a sentence of his consideration of section 33, but, to my way of thinking, he did not have that in the forefront of his mind as he would now be entitled to do in relation to section 33.  As to JB, in form at least, the judge does not mention inhibition as part of his section 33 decision.  Before the judge systemic negligence was of prime importance, and what the judge in addition has not dealt with at all in the context of section 33 is the causative effect of the abuse; that is to say, the extent to which the abuse, a long time ago, may have causatively carried through so as to be causative of any psychological condition that the claimant may now suffer.  Nor, importantly, has the judge considered the defendants’ difficulties of examining this question at this late stage.  He has not dealt with any difficulties that either parties may have of dealing with the fact of the abuse either.  In my judgment, in the round, these are matters which this court simply cannot supply.

9.	Importantly also, this court has not heard the evidence which has been given and we are not able to judge the credibility of the claimants nor the impact of the medical evidence that has been given, beyond the extent to which the judge has accepted it for the different purposes which he was addressing.  It is at least accepted by Mr Faulkes that this court should not go through the medical reports in detail in order to form a view of our own about that.  In the result I am persuaded, notwithstanding the joint submissions of each of the parties, that it would not be right for this court to re‑address and decide, on the material now available, the section 33 issues which become necessary for determination in the light of the House of Lords’ decision in Hoare.  Accordingly I would not only allow the appeal on that point but I would remit that matter to the judge.  

10.	We are invited to give guidance generally as to how, following Hoare, these limitation issues should be dealt with procedurally by courts of first instance.  I would decline to do so in this case, confining myself to a procedural decision only in this case.  And in this case it seems to me that the judge and the parties should consider as a matter of case management how to proceed now that the case is to be, as I think, remitted to the judge; not only in the light of where this particular case has got to but also in the light of its possible impact on other actions which we are told remain active.  

11.	For these reasons I would allow the appeal and remit the matter to the judge.

Lord Justice Keene: 

12.	I agree both with my Lord’s judgment and with the order which he proposes.

Lady Justice Smith: 

13.	I also agree in both respects.

Order: Appeal allowed