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	England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> LBX v Aldridge & Anor [2024] EWHC 3587 (KB) (07 November 2024) URL: http://www.bailii.org/ew/cases/EWHC/KB/2024/3587.html Cite as: [2024] EWHC 3587 (KB)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/11/2024

This judgment was delivered orally on 7 November 2024.
.............................
MASTER DAGNALL
1. In this matter, the Second Defendant ("the school") is seeking a full indemnity from the First Defendant ("the teacher") in relation to historical sexual abuse which the First Defendant allegedly committed against the Claimant one of the School's former female pupils. There is before me the Second Defendant's contribution notice of 25 June 2021 and the Second Defendant's application for summary judgment in relation to it dated 6 October 2023.
2. The claimant is subject to an anonymity order made by me on 17 February 2020 and so I will simply refer to her as "the claimant". On 5 June 2018 the teacher was convicted of a single count of having raped the claimant and on 8 June 2018 was sentenced to a term of 11 years imprisonment. The teacher is still serving his sentence, and so I have conducted the hearings in this matter remotely by CVP, with the teacher representing himself and appearing from the prison.
3. In consequence the teacher is a litigant in person and I have had regard to Civil Procedure Rule ("CPR") 3.1A when making case management decisions although the decision in Barton v Wright Hassall LLP [2018] UKSC 12 makes clear that being a litigant in person is no excuse for non-compliance with rules, practice direction ("PD")s and orders. The teacher is also of some advanced years and is imprisoned, and so that he has limited access to documents and has difficulties preparing and sending documents out from prison, and says that he has hearing and mental health difficulties; and hence he is at least potentially vulnerable within the meaning of CPR1.6 and PD1A. I have borne that fully in mind, including in seeking to comply with the overriding objective in CPR1.1, and in particular in relation to the need to take steps to enable the teacher to present his case fully and the need to deal with the case fairly (see CPR1.1(2)(a) and (d), although I have considered the overriding objective fully and the entirety of CPR 1.1).
4. I have sought to give the teacher, who had their assistance of a McKenzie friend, a full opportunity to present documents and written and oral submissions. and to see and respond to the case advanced against him. That has resulted in the hearing being adjourned twice, on the 25th of April 2024 on the 17th of July 2024, for reasons relating to the supply of documents and the time needed to be taken, and I have also heard submissions today on the 2nd of November 2024. I further offered the teacher today an opportunity to seek a further adjournment (a possibility which was opposed by Ms Dobie for the school) but the teacher stated that he wanted the matter resolved today.
5. I am satisfied that both parties before me have had a full opportunity to present their cases. I have considered all of the material before me and all of the teacher's and Ms Dobie's submissions in formulating this judgment. I am satisfied the parties have had a fair hearing.
6. The Claimant issued their claim form on 28 February 2020 against the teacher and the school in relation to alleged sexual assaults by the teacher. The particulars of claim alleged that, while a pupil at the school, the claimant was sexually abused and assaulted by the teacher on various occasions (including the rape for which the teacher was convicted) in or about the late 1970s; and that the school was liable either vicariously for the wrongs of the teacher or possibly in negligence for a failure to protect the claimant from the teacher. The claimant claimed special damages amounting to £6,700 and damages for pain, suffering and loss of amenity, including for an alleged depressive disorder, a specific phobia and an adjustment disorder all suffered as a result of the abuse. Those alleged mental health injuries were the subject of a detailed report from a consultant psychiatrist doctor, Dr Paul MacLaren dated 4r February 2019.
7. The Claimant then sought to serve the proceedings on the school and on the teacher. On the Court's CE-File is a Certificate of Service stating that the proceedings were served on the teacher by their being sent by post to the prison at which the teacher was then located with service taking place at the end of February/beginning of March 2020. The teacher accepts that he received the materials, including the claim form and the particulars of claim, but says that, although they are said (by certificate of service) to have included a CPR response pack, he was unaware that he ought to respond (i.e. by filing an Acknowledgement of Service and then a Defence).
8. On 17 April 2020 the school's solicitors wrote to the teacher to state that they could not act for the teacher as there was a conflict of interest and they intended to bring a contribution, to the extent of an indemnity, claim under section 1 of the Civil Liability (Contribution) Act 1978 ("the 1978 Act") against him, and advised him to seek independent legal representation. That letter referred to a previous letter of 13 March 2020 from the teacher to the school. I do not have that March 2020 letter before me, although I proceed on the basis that, as the teacher has said to me, the teacher had invited the school to join with him in presenting a common defence of disputing the claimant's claims and offered to assist the school in doing so.
9. The school filed an Acknowledgment of Service and then served a Defence admitting the rape of which the teacher had been convicted, but not admitting the other alleged assaults, disputing quantum and raising a defence of limitation. This was where the claim had been brought outside the 3 year limitation period from the claimant's attaining 18 provided for by sections 11 and 28 of the Limitation Act 1980 ("the 1980 Act") but where the claimant was able to seek a discretionary extension of the limitation period under section 33 of the 1980 Act, and in where the Court would consider all circumstances in deciding whether it was just to do so including the particular matters set out in section 33(5).
10. Material parts of section 33 of the 1980 Act read:

"33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 11, 11A, 11B or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates…

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A, by section 11B or (as the case may be) by section 12;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

(4) In a case where the person injured died when, because of section 11, 11A(4) or 11B(2) or (4), he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased.

(5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit.

(7) In this section—

"the court" means the court in which the action has been brought;

"the section 11 relevant date" means the latest of the following—

(a) the date from which the period of three years starts to run in accordance with section 11(4) or (5);

(b) where section 28 applies, the date from which the period of three years mentioned in subsection (1) of that section (as that subsection has effect with the modification made by subsection (6) of that section) starts to run…"

11. The teacher did not file or serve any Acknowledgment of Service or Defence, as required by Part 10 and Part 15 respectively of the CPR. In consequence, the claimant would have been permitted to obtain a default judgment on a request for a default judgment for damages to be assessed under the provisions of Part 12 of the CPR.
12. The case was assigned for case management to Master McCloud who on 25 November 2020 ("the 2020 Order") made any order directing a costs case management conference ("CCMC") to take place on 15 June 2021 and to be attended in person, although this was then varied to its taking place by telephone and which then occurred with the claimant and the school attending but the teacher not being present. The court's CE-File records that the 2020 Order was sent to the teacher at his then prison.
13. Master McCloud made an Order at the CCMC ("the June 2021 Order") which granted directions to trial. By paragraph 3 it was provided that:

"Of the court's motion, unless [the teacher] do, by 4pm on 20 July 2021, file and serve a properly pleaded Defence, judgment in default of a Defence shall automatically be entered against him in favour of [the claimant] for damages to be assessed."

14. By paragraph 4 the school was given permission to file and serve a contribution/indemnity notice against the teacher under CPR Part 20.
15. By paragraph 5 it was provided:

"As this order has been made in [the teacher's] absence, he may apply, on notice to the other parties, to vary any part of this order by 4pm on 6 July 2021."

16. The court's CE-file records that the June 2021 Order was sent to the teacher's then prison.
17. In pursuance of the June 2021 Order, the school filed its Contribution Notice against the teacher and served it on the teacher under cover of a letter of 25 June 2021 sent to the teacher's then prison. It referred to the school's Defence but said that the school would seek a 100% contribution from the teacher as the claimant's claim was in relation to alleged intentional torts inflicted upon her by the teacher.
18. The teacher did not respond to the Contribution Notice, and he had no obligation to do so under either CPR or the June 2021 Order. However, the teacher did, of course, have an obligation to file a Defence to the claimant's claim under paragraph 3 of the June 2021 Order.
19. The Court's CE-file shows that:

i) the June 2021 Order was sent to the teacher's then prison

ii) the teacher wrote to the Court by letter of 9 July 2021 stating that no booking had been made by his prison to allow his attendance at the CCMC, and therefore that he sought for the CCMC to be re-listed. That is some basis from which to infer that the teacher had received the June 2021 Order

iii) a court officer, Mr Eves, responded by letter of 26 July 2021, acknowledging the teacher's request for another CCMC but saying that the teacher would need to make a formal application to vary the June 2021 Order and to ask for another CCMC, and enclosing a blank N244 Notice of Application to enable the teacher to do so

iv) on 19 August 2021 the teacher wrote back to Mr Eves and referred to the letter of 26 July 2021 and also to an earlier letter of 13 August 2020 which I do not have. The teacher said that he had been trying to get representation but had been unable to do so and could not understand the civil law procedures or technical (legal) language. The teacher said that he had heard of a "representation order" and proposed to make an application for such and asked for Mr Eves to help him with this

v) I have not seen any response of the Court to the letter of 19 August 2021. However, it seems to me that the teacher did know what had to be done, as the June 2021 Order made absolutely clear that the teacher had to provide a "Defence" and had set a time (which had passed before the sending of the 9 July 2021 letter). Further, Mr Eves had made clear that an Application Notice in Form N244 had to be completed

vi) on 20 August 2021 the claimant sent a letter stating that the consequence of the June 2021 Order was that judgment in default should have been entered automatically against the teacher, in the absence of the filing of any Defence, and asking for confirmation that such had occurred. The claimant repeated these matters in a further letter of 27 September 2021

vii) The matter was referred to Master McCloud who considered the claimant's letters and decided that in the absence of any formal application and where the trial was listed for autumn 2022 not to direct the entry of any judgment against the teacher at point

viii) On 30 September 2021, the claimant wrote to the Court stating that Master McCloud was to consider the making of further directions and the request for judgment to be entered. However, the Court did not take any step in consequence of this.

20. The teacher did not make any formal application or file or serve a Defence.
21. The claimant and the school then negotiated a settlement of the claim as between them by way of the claimant accepting a CPR Part 36 offer for the school to pay damages quantified at £40,000 plus the claimant's costs of the Claim to be assessed if not agreed. Under the provisions of CPR36.15(4), as there were multiple defendants, the claimant had to apply to the Court for permission to accept the Part 36 offer and did so by Application Notice of 1 February 2022.
22. Master McCloud considered this application on paper without a hearing or seeking representations from the teacher, and made an order on 22 March 2022 ("the March 2022 Order") as follows:

"1. [The claimant] be given permission to accept [the school's] Settlement Offer dated 6 December 2021.

2. Upon acceptance of [the school's] Offer, [the claimant's] Claim against [the teacher] also be concluded.

3 Judgment is to be entered against [the teacher] in favour of [the claimant], the damages payable by [the teacher] are assessed at the nominal sum of £1 with no further order as to costs between [the teacher] and [the claimant]."

23. As the March 2022 Order provided for acceptance of a Part 36 Offer, and as was part of its terms, the claimant was entitled to be paid her costs of the Claim by the school, such costs to be assessed on the standard basis if not agreed. The claimant originally sought costs of £84,913.70 but a settlement was reached as to them in the figure of £72,500 on 8 June 2023. That brought an end to the litigation as between the school and the claimant, and as between the claimant and the teacher.
24. The teacher accepts he was sent copy of the March 2022 Order, and said that he read it as being also an end to the litigation as between the school and the teacher; although it made no reference to that being the case.
25. By letter of 11 April 2022, the school wrote to the teacher attaching a copy of the March 2022 Order, referring to its paragraph 3, and asserting that, once costs had been resolved between the school and the claimant, the school would be seeking a full indemnity of its outlay from the teacher. The teacher says that he read the March 2022 order as meaning that it was the end of the litigation as far as the teacher was concerned. However, it only said that it was the end of the litigation between (i) the claimant and the school and (ii) the claimant and the teacher But it said nothing in relation to the claim between the school and the teacher
26. On 16 August 2023 the school wrote to the teacher a lengthy letter asserting that its settlements with the claimant were bona fide and that they were seeking a full indemnity from the teacher in relation to all that they had paid and expended in relation to the claimant's claims.
27. The school then brought its summary judgment application dated 6 October 2023 supported by witness statement of its solicitor, Richard Kirby, dated 6 October 2023.
28. The teacher responded by letter saying that the claimant's claim was spurious and that the school should have defended the claim. The teacher requested that the school awaited actioning its contribution claim until the teacher has ceased to be in prison and had been able to advance an appeal against his criminal conviction. This course was not acceptable to the school. The teacher also asserted that the school owed him some duty of care as an ex-employee, a contention which I do not accept including because these proceedings post-date the end of the employment by a very considerable time and the teacher had been convicted of a very serious charge relating to the employment.
29. The teacher has since produced material which he says would have given rise to a full defence to the claimant's claim against the teacher, and hence against the school, being principally:

i) a chronology of events which I think asserts that the claimant's claim of assaults and rape were one or more of: (i) teenage fantasy (ii) fabrication (iii) the product of a pre-existing mental health condition, an unrelated trauma, certain surgery and the use of various medication and/or drugs

ii) states that the jury was wrong to convict the teacher of the single count of rape; that the trial was unfair; that much relevant material, including letters from the claimant showing that the claimant did not regard herself in any way as having been assaulted by the teacher, was not before the jury or properly considered; further, that the claimant was generally unreliable and had lied on numerous occasions; and, that the claimant's versions of events were inherently incredible

iii) states that the claimant's claims were limitation barred.

30. I bear in mind that the jury did convict the teacher of a single count of rape albeit at a second trial where the first jury had been unable to agree; and that the teacher has not sought to appeal but says that he may do so once he is released.
31. During the hearings I have made directions for the teacher to clarify various matters, including as to whether and when he received documents, and why he had not taken relevant steps, in particular to file an acknowledgement of service or defence. I have set out what the teacher has said in response above.
32. The school by Ms Dobie submits that the school is entitled to summary judgment on its contribution claim against the teacher under CPR 24.3:

"The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if:

(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial."

33. I note summary judgment is only granted if D1 has no real prospect of successfully defending the claim and there is no other compelling reason for trial to take place.
34. The legal principles to be applied by the court in considering whether there is "no real prospect of success" in relation to a defence (or a claim) are set out in the White Book Notes at section 24.3.2 (and onwards) and where 24.3.2 reads as follows:

"24.3.2 "no real prospect of succeeding"

The following principles applicable to applications for summary judgment were formulated by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] and approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098; [2010] Lloyd's Rep IR 301 at [24]:

i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 1 All ER 91;

ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];

iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman;

iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10];

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550;

vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 3;

vii) On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."

35. I note that for there to be a real prospect of success, the teacher's case must be greater than merely fanciful. I further bear in mind that the Court should not engage in any mini-trial. I further note that the Court should bear in mind the potential for more relevant material, for example documents or witness evidence, to surface before or during a trial, but only if there is a realistic prospect of this occurring and which will general require some foundation to exist for such a supposition. Further, the Court can resolve matters that are clear or points of pure law.
36. The school says that it is entitled to full indemnity from the teacher under Section 1 of the 1978 Act. Ms Dobie submits that this is the case on one or more of three bases: first, that the school settled the claimant's claim, being a claim against the school based on it being vicariously liable for the wrongs of the teacher, in good faith and in consequence is entitled to an indemnity as a matter of law whether or not it or the teacher actually had a defence against the claimant, and she relies on section 1(4) of the 1978 Act and contends that in those circumstances both the school's and the teacher's liability to the claimant is deemed to be established; second, that it is clear that the teacher has been convicted of a serious sexual assault on the claimant and there is no real prospect of the teacher showing that he did not commit the wrongs asserted by the claimant in this litigation and which are the subject-matter of the settlement between the school and the claimant; third that judgment has been entered against the teacher on liability for damages to be assessed, and, even though those damages were nominally assessed at £1, the teacher is as a result barred from contending that he did not commit the asserted wrongs and which are the subject-matter of that liability judgment.
37. The teacher says that he, and in consequence the school, both had full substantive defences, and also limitation defences, against the claimant and her claims. He says that the school was wrong to refuse his invitation to defend the claimant's claim in concert.
38. I note that the teacher also says that the prison authorities have taken various of his documents, and also that he has memory problems resulting in his not being clear as to what documents he has or has not received throughout proceedings. I have borne in mind that the teacher appears to be vulnerable; and I have needed to consider and have considered how that affects his ability to present his case under CPR1.1 and 1.6 and PD 1A, but the procedural history of this case seems to me to be clear, the teacher has not sought an adjournment, and, having considered the overall fairness of the matter, I consider that I should proceed to deal with the school's first and third arguments.
39. Ms Dobie contends that the school is entitled to contribution under section 1 of the 1978 Act, which reads as follows:

"1 Entitlement to contribution.

(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).

(2) A person shall be entitled to recover contribution by virtue of subsection (1) above notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, provided that he was so liable immediately before he made or was ordered or agreed to make the payment in respect of which the contribution is sought.

(3) A person shall be liable to make contribution by virtue of subsection (1) above notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, unless he ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against him in respect of the damage was based.

(4) A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.

(5) A judgment given in any action brought in any part of the United Kingdom by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought.

(6) References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; but it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales."

40. I note that section 2 provides:

"2 Assessment of contribution.

(1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question.

(2) Subject to subsection (3) below, the court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

(3) Where the amount of the damages which have or might have been awarded in respect of the damage in question in any action brought in England and Wales by or on behalf of the person who suffered it against the person from whom the contribution is sought was or would have been subject to—

(a) any limit imposed by or under any enactment or by any agreement made before the damage occurred;

(b) any reduction by virtue of section 1 of the Law Reform (Contributory Negligence) Act 1945 or section 5 of the Fatal Accidents Act 1976; or

any corresponding limit or reduction under the law of a country outside England and Wales; the person from whom the contribution is sought shall not by virtue of any contribution awarded under section 1 above be required to pay in respect of the damage a greater amount than the amount of those damages as so limited or reduced."

41. Ms Dobie submits that the teacher cannot challenge their liability to make contribution to the school on three sets of grounds:

i) the effect of section 1(4) of the 1978 Act is that all that is required for the school to be entitled to contribution is for it to show that it entered into a bona fide settlement with the claimant, and the teacher is not able in law to seek to challenge their liability to make contribution to the school and on the basis that they committed the wrongs which were the subject of the claimant's claims against the school and its settlement with the claimant

ii) in any event the teacher has been convicted of the rape of the claimant and so has no real prospect of successfully defending the issue that he committed the wrongs, and which caused the damage for which the school has made payment to the claimant and for which it should have contribution from the teacher

iii) the teacher has had judgment entered against them in this litigation in relation to the claimant's claims, and as a result cannot dispute their liability to the claimant in relation to the matters for which the school has made payment to the claimant and for which it should have contribution from the teacher.

42. The teacher challenges each of these three ways in which Ms Dobie contends that contribution should be ordered against the teacher on a summary basis. He says that he, and by extension the school, had good defences against the claimant's claims both substantively (i.e. there were no unlawful sexual assaults) and on limitation grounds, and which defences have and had real prospects of success. He says that he should be permitted to pursue those defences, and so as to resist the contribution claim, and, indeed, that the school was wrong to refuse his past invitation for them to defend jointly the claimant's claims against him.
43. I note that the teacher also says that the prison authorities have taken many of his letters and other documents, and that he has memory problems and cannot recall various matters. However, where Ms Dobie's arguments (i) and (iii) are matters of law, and I can take the question of whether there is other potential material into account in relation to Ms Dobie's argument (ii), I do not see that those matters should hinder or prejudice the school in advancing the arguments put before me to the effect that I can determine matters summarily against the teacher. I do not see how my granting any adjournment would assist in the teacher's responding to these summary applications, and, indeed, when I raised the question of an adjournment to enable the teacher to be better able to consider the material which is available, he indicated that he did not wish to pursue that course. I have therefore determined to proceed.
44. Ms Dobie's first argument is to the effect that the school is automatically entitled as a matter of law to contribution against the teacher, and that that is irrespective of whether or not the teacher actually committed the sexual assaults, and so that there is no reason for the court to consider whether or not they took place, is based on section 1 of the 1978 Act. She submits that all that is required for a contribution claim is laid down by section 1(4) to be that: (i) the claimant's pleaded claim showed reasonable grounds for a claim to be brought against the school based on alleged wrongs of (or at least alleged damage caused by alleged wrongs of) the teacher And (ii) the school to have entered into a bona fide settlement with the claimant. In those circumstances, Ms Dobie submits that the school has an automatic entitled to contribution from the teacher on the basis that it is deemed, as between the school and the teacher, that the teacher wrongfully caused the claimant to have suffered the damage which she asserted against the school.
45. Ms Dobie has referred me to a number of authorities. First, to Clerk & Lindsell on Tort (24^th Edn) at paragraph 4-17 (I have included the footnotes):

"Contribution in respect of settlement

The Civil Liability (Contribution) Act 1978 s.1(4) seeks to discourage unnecessary litigation by enabling a party to a settlement to recover contribution from others liable with him in respect of the damage for which he has agreed to compensate the person suffering damage. The section provides that a person may recover contribution if he has made or agreed to make any payment:

"…in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) …without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established."⁶⁵

The requirement that the settlement or compromise be bona fide seems aimed at excluding collusive settlements but is insufficient to exclude the injudicious or unreasonable settlement to which the party from whom the contribution is sought would not have agreed. On the other hand, it has been held that the imposition of such an agreement on a third party can be justified even though the third party played no part in formulating its terms. For where such a settlement or agreement has been approved by the court, the agreement acquires a status beyond merely a private agreement between the first and second parties to the litigation. Rather, in having been approved by the court in the exercise of its procedural powers, it would lie with any properly interested third party to invite the court to re-examine the terms of the agreement.⁶⁶ Furthermore, a contribution can only be sought, of course, from persons liable for the damage. To safeguard the rights of the person from whom contribution is sought, while the person seeking contribution need not prove that he was liable on the facts, it must be shown that if the factual basis of the claim could be established, then in law the person seeking contribution was liable for the damage. Where proceedings have begun, the person seeking contribution can establish liability on the basis of the facts set out in the statement of claim.⁶⁷ In other cases, the factual basis of the claim may have to depend on the facts as he understood, or ought to have understood them, to be and the question in such a case of the bona fide nature of the settlement becomes crucial. However, s.1(4) is only concerned with the issue of whether the defendant (D1) was liable to the claimant. A contribution claimant must still show that D2, the person against whom the contribution is sought, is liable for the same loss.⁶⁸"

65 Arab Monetary Fund v Hashim (No.8) (1994) 6 Admin LR 348.

⁶⁶ B v British Coal Corp [2004] EWHC 1372 (QB).

⁶⁷ See, e.g. WH Newson Holdings Ltd v IMI Plc [2016] EWCA Civ 773; [2017] Ch 27, notably [52]– [62]: s.1(4) gives the defendant in the main proceedings the benefit of an assumption that the factual basis pleaded in the statement of claim could be established against it.

⁶⁸ Percy v Merriman White [2022] EWCA Civ 493; [2022] Ch 249. See Walton, (2022) 38 PN 245."

46. Ms Dobie took me to WH Newson Holding Ltd v IMI Plc [2016] EWCA Civ 773. There a defendant has entered into a settlement with a claimant and then claimed contribution against the third party. The third party said that the defendant should have pursued an arguable limitation defence against the claimant. At paragraphs 47-53, the Court of Appeal said as part of their "Discussion":

"47. I shall continue to use the shorthand C, D1 and D2 to refer generally to the main claimant and to the parties in contribution proceedings, as well as to the parties to these proceedings. I shall use the phrase 'collateral defence' to refer, as in the Hashim case, to a defence raised by D1 that does not involve a denial of the factual basis of C's cause of action against him, but is in the nature of a defence of confession and avoidance and may be one of limitation. Whether a defence of confession and avoidance will leave the burden of its factual proof upon D1, or will result in the burden of its factual disproof shifting to C, will depend on C's response to it. In some cases, C may simply join issue with it, in which case the burden of proof will remain on D1. In others, C may admit the facts of the collateral defence but plead a positive case in his Reply which, if proved, will defeat the defence. In such a case, there will be a burden on C to disprove the collateral defence. If the collateral defence is one of limitation, then even if there is no more than a joinder of issue by C, the burden will be on him to prove that the claim is not time barred (see London Congregational Union Inc v. Harriss & Harris (a firm) [1988] 1 All ER 15 , at 29, 20). First, a general word about section 1 of the 1978 Act.

48. Section 1 must be read as a whole. Section 1(1) establishes the right for D1, if 'liable in respect of any damage' suffered by C, to recover a contribution from D2 if he is 'liable in respect of the same damage'. Section 1(1) is, however, expressly stated to be '[s]ubject to the following provisions of this section …', which explain or qualify the need for D1 in contribution proceedings to show his and/or D2's liability in respect of the damage C suffered.

49. Section 1(2) covers the case in which at the time that D1 claims contribution from D2 for any payment he has made, been ordered to pay or has agreed to pay C, D1 has ceased to be liable to C in respect of the damage. D1 might have so ceased in various circumstances. He might, before any proceedings had been brought against him, have agreed to meet C's claim in full and have so satisfied the claim. He might have been sued by C to, and satisfied, a judgment. Section 1(2) shows that in cases such as these it matters not that D1's contribution claim against D2 is brought after he has ceased to be liable to C. It will be enough that he was so liable immediately before he made, or was ordered or agreed to make, the payment in respect of which the contribution is sought.

50. Whereas section 1(2) looks at the position from D1's viewpoint, section 1(3) looks at it from D2's. Its first half, down to the phrase 'when the damage occurred', mirrors section 1(2) : if, as section 1(2) shows, D1 is entitled to claim contribution from D2 even though, by the time of D1's claim, D1 has ceased to be liable in respect of the damage to C, D2 is correspondingly answerable for a contribution even though he too has ceased to be so liable. There is, however, a qualification to that, namely that D2 will not be so answerable if he has ceased to be liable because the expiry of a limitation or prescription period has extinguished the right on which C's claim against D2 was based. The present case is not one in which an expiry of the limitation period would have extinguished C's right of action: it would have done no more than bar C's remedy. It is because of section 1(3) that it is no part of Delta's resistance to IMI's Part 20 claim that Delta was not, or would not have been, liable to Travis Perkins on the ground of limitation.

51. On its ordinary wording ('made … or agreed to make'), section 1(2) applies also to the case in which D1 has made a bona fide settlement or compromise of C's claim before he brings his contribution claim against D2. If, therefore, section 1 had stopped at section 1(3) , in a case such as the present D1 would be faced in contribution proceedings against D2 with the burden of proving his own liability to C at the time of the payment or the agreement to make it. Section 1(4) , however, deals expressly with the case of a bona fide settlement or compromise and is plainly directed at qualifying the provisions of sections 1(1) and 1(2) in relation to any contribution claim by D1 that follows the making of such a settlement.

52. Section 1(4) must also be read as a whole and its major part (down to the proviso) makes it clear that, subject to the proviso, a contribution claim by D1 against D2 made in the wake of D1's bona fide settlement or compromise of C's claim neither requires nor permits any investigation into whether or not D1 'is or ever was liable in respect of the damage …', that is whether or not he was actually liable. That is an express negation of the probative burden that, had they stood alone, section 1(1) and (2) would have imposed on D1. It is obvious that the policy underlying section 1(4) in that respect is that explained in the Law Commission report, which expressed the concern that, following a bona fide settlement between C and D1, D1 ought not in any contribution proceedings against D2 to have to prove its own liability to C. It wanted the law to be so reformed that, provided that D1's settlement with C was bona fide , D1 could recover contribution from D2, whether or not he, D1, was so liable. One driver behind that recommendation was that otherwise, as explained in paragraph 44 of the report, it would mean 'turning all the usual conventions of civil litigation upside down' – that is, it would have required D1 to prove C's case against himself. Another was that otherwise D1 might feel obliged to fight C's case to judgment in order to protect his contribution rights. Whereas the ordinary sense of section 1(1) is that, in contribution proceedings, D1 must prove his own liability to C, and section 1(2) clarifies the time at which he must do so, section 1(4) qualifies both requirements.

53. The qualification is not, however, absolute because it is subject to the proviso. The question is as to the breadth of the defensive response to D1's contribution claim that the proviso permits D2 to make. I shall consider first the argument raised by the respondent's notice."

47. The Court of Appeal then considered the question of the arguable limitation defence in paragraphs 54-62:

"54. The argument in the respondent's notice is that 'the factual basis of [C's] claim against [D1]' within the meaning of the proviso is a reference only to the factual basis of the substantive claim pleaded in the particulars of claim. The proviso to section 1(4) gives D1 the benefit of an assumption that such basis could be established against him. To succeed against D2, it is said to follow that all D1 has to show is that, on such assumption, such factual basis discloses a reasonable cause of action in law against him so as to make him liable in respect of the damage C suffered. If he can do that, he will have shown that 'he would have been liable' to C, and it will not be open to D2 under the proviso to raise any other argument directed at showing that in fact D1 would not have been liable to C.

55. I would accept the correctness of that interpretation of the proviso to section 1(4) . I agree, therefore, with the reservations in BRB that Cranston J expressed, but did not develop, as to Chadwick J's different interpretation in Hashim . It follows that I respectfully disagree with that interpretation. If I may say so, I consider that Chadwick J focused too closely on the trees in the proviso without also standing back and noting the nature of the wood in which they had been planted. The result was that he wrongly allowed the tail of section 1(4) to wag the dog. I shall explain why I disagree with his approach.

56. The premise of a contribution claim by D1 based on section 1(4) is that there has been a bona fide settlement or compromise of C's claim against D1. It will no doubt be open to D2 to argue in any contribution proceedings that the settlement or compromise was not a bona fide one, for example that it was a collusive, corrupt or dishonest one (see the Law Commission report, paragraph 56), and if such a case is made good the provisions of section 1(4) will not avail D1. In this case, however, there is no suggestion that D1's settlement with C was other than bona fide and so section 1(4) is in play.

57. If I may be forgiven for stating the trite, legal proceedings can range from the relatively simple to the very complicated. In some cases, C's claim may be based on straightforward facts and D1's Defence may do no more than deny them. In others, D1's Defence may question whether, even if proved, C's factual case would entitle C to relief; it may also deny the facts or material parts of them; it may raise a limitation or other collateral defence; and the outcome on the pleadings may be that the burden of proof on matters raised by the Defence will rest on D1 or that a burden of disproof will shift to C.

58. Whether, however, the case is simple or complicated, in arriving at a bona fide settlement C and D1 will respectively have assessed the relative strength or weakness of their respective cases in the litigation and have brought into account the commercial considerations bearing upon it. If the settlement involves a payment by D1 to C, then a claim by D1 for contribution to it by D2 will be one to which section 1(4) applies. The central feature of section 1(4) , expressly spelt out in its main part down to the proviso, is that in any such claim there will be no question, and therefore no inquiry, as to whether or not D1 was in fact liable to C. In so providing, section 1(4) gave clear effect to the Law Commission's recommendation.

59. The proviso of course shows that D1 must still prove at least something in order to succeed against D2. That is that 'he would have been liable [to C] assuming that the factual basis of the claim against him could be established.' In my judgment the sense of that is that all that D1 needs to show is that such factual basis would have disclosed a reasonable cause of action against D1 such as to make him liable in law to C in respect of the damage. If he can do that, he will be entitled to succeed against D2. There may of course remain issues as to quantum, as to which section 1(4) makes no assumptions.

60. Chadwick J's view expressed in Hashim was that there was more to the proviso than that since its stated assumption as to the establishment of factual matters did not extend to an assumption in favour of C of any factual matters forming the basis of a collateral defence raised by D1 in respect of which the burden of proof was on D1. His view was, therefore, that the proviso permitted an investigation by D2 of whether any such collateral defence might have succeeded; and, if it would have done, D1 would not have been liable to C.

61. In my respectful view, that construction of the proviso is one that section 1(4) does not permit. It has provided expressly that there is to be no inquiry as to whether D1 was or was not actually liable to C and the proviso cannot therefore fairly be read as impliedly qualifying that prohibition so as to let in an inquiry directed at showing that D1 was not actually liable. Such an interpretation is repugnant to the express intention of the primary provision of section 1(4) . In my judgment, the only permissible interpretation of the proviso, read in the context of section 1(4) as a whole, is that the limit of the inquiry it permits is as I have summarised it in [59] above.

62. In my view, therefore, to the extent that the Hashim case decided that the proviso permits D2 to raise an inquiry as to whether, in light of any collateral defence raised by D1 to C's claim, C would not have been actually liable to C, it was wrongly decided. It follows that I consider that in the present case Rose J applied the wrong principles, although I should repeat that the argument raised before us in the respondent's notice was not advanced to her. Since, however, there is no dispute that, on the interpretation of section 1(4) that I would favour, IMI satisfies the requirements of the proviso, I would uphold her decision, albeit for different reasons."

48. Ms Dobie submitted that this reasoning meant that the teacher could not raise any defence which he might have had against the claimant so as to resist the school's contribution claim once it had been decided that the school's settlement with the claimant was entered into bona fide i.e. in good faith.
49. I was concerned as to whether there was further relevant case-law in this area, and Ms Dobie then researched and located the decision in Perry v Merriman [2022] EWCA Civ 493. There it was argued by a defendant (solicitor who had acted for the claimant ex-client) that section 1(4) meant that they should automatically succeed in their contribution claim against a third party (barrister who had acted for the claimant ex-client) where the defendant had been held liable to the claimant at a trial to which the third party had not been a party.
50. The Court of Appeal considered this in paragraph 82 to 91 of their judgment (before going on to consider whether the third party was in some way guilty of an abuse of process in effectively seeking to challenge the judgment, and which was held not to be the case on the relevant facts):

"82. Contrary to Mr Pooles QC's submissions, in my judgment section 1(4) of the 1978 Act is concerned only with the first issue identified by Mr Lawrence QC, namely whether D1 is liable to the claimant. Section 1(4) in effect creates a species of deemed liability of D1 where D1 enters a bona fide settlement with the claimant: D1 does not have to establish that he was or is liable to the claimant provided that he would have been liable if the factual basis of the claim against him could be established.

83. However, nothing in the sub-section touches upon the second twofold issue as to whether D2 was negligent or otherwise in breach of duty and whether that negligence or breach of duty was causative of the claimant's loss.

84. Furthermore, I do not consider that the judgment of Sir Colin Rimer in Newson leads to a different conclusion. The passages in the judgment on which particular reliance is placed are concerned with establishing that the effect of section 1(4) is that, where D1 settles the claim, there will be no enquiry in the contribution proceedings as to whether D1 was in fact liable to the claimant, provided that the proviso is satisfied: see the third sentence of [58]:

"The central feature of section 1(4) , expressly spelt out in its main part down to the proviso, is that in any such claim there will be no question, and therefore no inquiry, as to whether or not D1 was in fact liable to C."

85. [59] then addresses the effect of the proviso, but this is still dealing with the position as between D1 and the claimant, not with the issue as to how the liability of D2 to the claimant is to be established. This is really made clear by the paragraphs which follow, [60] to [62], which discuss and disapprove the judgment of Chadwick J in Hashim which had suggested that the assumption in section 1(4) did not extend to factual matters forming the basis of a collateral defence raised by D1 in respect of which the burden of proof was on D1. However, that judgment and the discussion of it by Sir Colin Rimer were concerned only with the liability or deemed liability of D1 to the claimant where there is a bona fide settlement. Nothing in that analysis addresses the need to establish that D2 is liable to the claimant.

86. Reliance is placed by MW on the third and fourth sentences of [59] of Sir Colin Rimer's judgment:

"In my judgment the sense of that [the proviso] is that all that D1 needs to show is that such factual basis would have disclosed a reasonable cause of action against D1 such as to make him liable in law to C in respect of the damage. If he can do that, he will be entitled to succeed against D2."

87. That passage is relied upon to support the proposition that, if the proviso to section 1(4) is satisfied, D1's contribution claim against D2 will succeed without more and without D1 having to establish that D2 was negligent or that any such negligence was causative of the claimant's loss. It is apparent from the last sentence of [81] of his judgment that this is the analysis which found favour with the judge.

88. However, in my judgment, neither section 1(4) nor the decision of this Court in Newson dictates such a startling result. It is important to have in mind two aspects of the particular facts of Newson . First that both IMI and Delta were bound by the decision of the Commission that they had participated in an unlawful cartel. Second, as recorded in [13] of Sir Colin's judgment, Delta was constrained to accept, by virtue of section 1(3) of the 1978 Act , that it could not argue that it was not liable to make contribution because the claim against it by the claimant was time-barred under the Limitation Act 1980 , since the effect of that Act was to bar the remedy not to extinguish the right. That acceptance made Delta's argument on appeal that, notwithstanding the settlement and section 1(4) , IMI was not liable to the claimant because of limitation, a peculiarly ambitious one.

89. Once the Court had determined that the proviso in section 1(4) was satisfied, it does follow that, on the facts of that case, D2's liability was established so that the fourth sentence of [59] of Sir Colin's judgment: "If he can do that, he will be entitled to succeed against D2", was clearly explicable. However I do not consider that that sentence can be taken out of context and made to stand for the proposition that, in every case where D1 makes a bona fide settlement with the claimant and the proviso to section 1(4) is satisfied, D2 is liable to make contribution, without the need to establish whether or not D2 was liable to the claimant, which in a case such as the present means establishing that D2 was negligent and that any such negligence was causative of the claimant's loss. In other words, in a case such as the present, that fourth sentence of [59] falls to be qualified by adding words such as: "as regards his own liability to the claimant".

90. The judge's analysis at [95] of his judgment that it was not open to Mr Mayall to argue, in defending himself against an allegation of professional negligence, that the judgment of Mr Donaldson QC was wrong is equally startling. It is accepted by MW that there is no question of res judicata applying, since Mr Mayall was neither a party to nor a privy of a party to the derivative action. If authority were needed for the proposition that counsel or a solicitor for a party is not a party or privy to the litigation in which he or she is representing that party, it is to be found at [32] of Laing where Buxton LJ said:

"It was argued before us, but not I think before Langley J, that TW were the privies in interest of their client Mr Watson. Mr Laing was bound by estoppel not only as against Mr Watson but also against TW in respect of the issues decided in the first case. The second claim should be dismissed on that ground, without therefore needing to evoke abuse of process. This was a novel claim, and almost certainly misconceived. It is difficult to see how a solicitor can have the same interest as his client either in fact or in law, not least because of his concurrent duty to the court. In any event, this is not the case in which to seek to explore this suggestion further".

91. Since no question of res judicata arises, the basis for the judge's conclusion that it is not open to Mr Mayall to challenge the correctness of Mr Donaldson QC's judgment is that to do so would be a collateral attack on the judgment, which would bring the administration of justice into disrepute and hence be an abuse of process."

51. Ms Dobie contends that Perry v Merriman is distinguishable from this case on the basis that the nature of the claimant's vicarious liability was such that the school could only be (vicariously) liable for the wrongs of the teacher (or, possibly, liable for failure to protect the claimant from the teacher) if the teacher had in fact committed the various sexual assaults. She pointed out that there was no such inevitability as between the various parties on the facts of Perry v Merriman, and submitted that in paragraph 89 the Court of Appeal was upholding the judgment in WH Newson, and the consequence that a third party was automatically liable to make contribution to a bona fide settlement where the defendant could only have been liable to the claimant in circumstances where the third party would also have been liable to the claimant.
52. Ms Dobie contends that Perry v Merriman is distinguishable from this case on the basis that the nature of the claimant's vicarious liability was such that the school could only be (vicariously) liable for the wrongs of the teacher (or, possibly, liable for failure to protect the claimant from the teacher) if the teacher had in fact committed the various sexual assaults. She pointed out that there was no such inevitability as between the various parties on the facts of Perry v Merriman, and submitted that in paragraph 89 the Court of Appeal was upholding the judgment in WH Newson, and the consequence that a third party was automatically liable to make contribution to a bona fide settlement where the defendant could only have been liable to the claimant in circumstances where the third party would also have been liable to the claimant.
53. Ms Dobie further contends that this was a reasonable bona fide settlement although the teacher says that it was an unnecessary giving in to the claimant where the teacher had made clear that there was a full substantive defence and the school was also itself asserting limitation.
54. I considered Ms Dobie's written and brief oral submissions carefully. As I had come to a clear conclusion, and in the light of the limited time available and the strength of Ms Dobie's third point (see below), I limited her oral submissions on this aspect, as to which I hold as follows.
55. First, I hold that the fact the school might have had a limitation defence is not a potential defence in law for the teacher in relation to the contribution claim. That is precisely what WH Newsom decided; the only question in those circumstances, where there is a bona fide settlement, is whether the facts pleaded by the claimant disclose a reasonable basis in law for liability. Since the limitation defence is not a challenge to liability but only to the bringing of an action, it is collateral, and therefore a person against whom contribution is sought cannot use it to say that the contribution claim must fail because the person bringing it was not liable to the claimant.
56. However, it does seem to me that limitation can be relevant at this point, because if it is clear that a limitation defence would succeed, or even in some circumstances would be merely arguable, that may lead to a question as to whether the settlement itself was entered into bona fide. It might be argued, depending on the circumstances of a particular case, that a defendant was not acting in good faith if they ignored an obvious limitation defence but rather chose to pay out a claimant and sue a third party for contribution.
57. Second, I do hold that it is clear that this settlement was entered into a bona fide and that the teacher has no real prospect to showing otherwise and even if the burden of demonstrating that is on the school then the school has discharged that burden. That is for the following reasons:

i) All that is required is that the settlement was entered into in good faith where the pleaded facts show a reasonable basis for the claim to be made in law were they to be established

ii) It is clear that the requirement as to the facts pleaded is made out in this case. The factual allegations with regards to sexual assault were made in relation to a time when the claimant was a child and incapable of consent, and even if certain of them related to a time when the claimant was eighteen, the teacher was still in a position of trust where it would be wrong in law for them to enable to engage in sexual conduct with a pupil even had there been some form of consent (and which the claimant said there had not). The school was clearly potentially vicariously liable where the teacher was employed by in it in a teaching position in a boarding school

iii) For the settlement to be entered into bona fide, requires no more than for it to be entered into in good faith. Even if a settlement is unreasonable, it can still be entered into in good faith; although if the entry into the settlement or any of its terms were unreasonable that might suggest that it was not entered into in good faith. However here:

a) The claimant's allegations were made in circumstances where a jury had convicted the teacher of the most serious alleged sexual assault resulting in a prison sentence of 11 years. The teacher had not sought to appeal

b) In such circumstances the school would have every reason to believe it would be likely to lose at a trial against the claimant regardless of whether or not the relevant events, and therefore the wrongs, had actually occurred. The school did not have the material which the teacher has now produced but, even if it had, it could still, in my judgement, say that it was right to enter into the settlement, as, if the jury had believed the claimant as it evidently did, it would be likely that a judge would still do so now. That is all the more so in view of the provisions of section 11 of the Civil Evidence Act 1968 (which I set out below) which create a statutory presumption that the factual basis of a conviction is correct. While that is only a presumption, and can be displaced, a defendant school can, in my judgment, act perfectly sensibly in considering that it will not

c) Further, the £40,000 settlement figure seems a reasonable damages figure in a case of this nature. Mr Kirby in his witness statement in general and in his letter of 16 August 2023 in detail set out that: the special damages claim was for £6000; the expected damages for pain, suffering and loss of amenity based on the then Judicial College "General Damages for Personal Injury" suggested about £45,000 for that head of damage; and there was also potential for an award of aggravated damages. The claimant's first offer had been a figure of £75,000. I set out below as to why I consider that the evidence available strongly supported a substantial damages claim. In those circumstances £40,000 as a negotiated settlement seems to me to be an eminently proper and reasonable figure even bearing in mind the limitation arguments available to the defendant which might be factored into a negotiation.

iv) I do accept that limitation is potentially relevant here, especially if it was clear that there is a limitation bar available to a defendant. That may lead to a query as to whether a settlement was entered into in good faith. However, section 33 of the 1980 Act gives the court a very wide discretion, and very often results in an extension to limitation periods in historic sexual abuse claims. That is very much more so where there has been a conviction, as here, of a very serious sexual offence; essentially the claimant can say in order to justify an extension of a limitation period that the factual basis of the relevant tort has been established or at least fully investigated such that it is proper to allow their civil claim to proceed

As I have said, the question before me is only whether it is clear that the settlement was entered into in good faith. This settlement appears to me to have been a perfectly reasonable one for the reasons given above. It was negotiated by solicitors where the evidence before me is that a genuine negotiation took place resulting in a figure much less than the claimant was originally seeking. It seems to me that on all the evidence that this settlement was clearly entered into in good faith and that it is no more than fanciful for the teacher to suggest otherwise (and so that he has no real prospect in succeeding on the issue that it was entered into in good faith).

58. Accordingly, under Section 1(4), in principle, the school is entitled to seek contribution in relation to the £40,000 settlement figure and the agreed (between claimant and school) costs payable to the claimant as long as the defendant was actually liable to the claimant in relation to the asserted damage suffered by the claimant.
59. However, I disagree with Ms Dobie's contention that the effect of the 1978 Act in these circumstances is that the teacher is deemed, for contribution purposes, to be liable for the wrongful acts which were asserted by the claimant to have been committed by the teacher against her simply because the school has entered into a bona fide settlement (not agreed to by the teacher) with the claimant. At first sight it would seem startling, if not bizarre, that one person could, without their consent, become liable to another for contribution in relation to a factual allegation, disputed by the first person, on a deemed basis simply because that other had reached a bona fide settlement with a third party. Of course, it is possible for a statute to mandate such a consequence, but it seems to me that such would require very clear words for it to be the appropriate construction of the legislation.
60. I have construed the legislation in the light of the case-law and on the ordinary basis of considering how the reasonable reader would interpret it taking into account the words and the statutory purpose (and applying an iterative approach of considering the various possible constructions holistically rather than rejecting some and coming to a residual default meaning). I conclude that in these circumstances, the school still has to establish the teacher's liability to the claimant in relation to the alleged wrongful acts by means other than the mere fact of the settlement between claimant and school, and notwithstanding that the case against the school had to depend upon the teacher having committed the various wrongful sexual assaults. That is for the following reasons:

i) That, in my view, is precisely what was held in Perry v Merriman, see the passages of that judgment cited above

ii) That also seems to me to be the natural reading of the statute as otherwise it would have oppressive and, to my mind, bizarre effects of preventing someone (the teacher) disputing the occurring of factual events simply because two other persons (claimant and school) had reached a settlement, and to their financial prejudice. The Court of Appeal described such an outcome in Perry v Merriman as "startling" and it seems to me that they were obviously right and that their view (which is binding on me) is very much in point

iii) It is clear, it seems to me, that both on an ordinary interpretation of its wording and as interpreted by the Court of Appeal in Perry v Merriman, all that section 1(4) does is establish the school's liability to the claimant for the purposes of enabling the school to have an uncontestable right to bring a contribution claim against someone who was actually responsible for damage to which the bona fide settlement purported to relate; and no more. That is what section 1(4) and Perry v Merriman say. They do not say that that the third party cannot contest that they were actually responsible for the material damage (even if the settlement assumed that it occurred), what they do say is that claim cannot be defeated on the basis that the school had no right to bring it i.e. against anyone who was actually also responsible for relevant damage, a matter which still has to be established. Indeed that is what the final sentence in the Clerk & Lindsell passage cited above says in express terms

iv) I do not see that the position that the claimant's claim against the school is a vicarious liability claim (or similar) takes the matter any further or renders Perry v Merriman distinguishable. As to this:

a) It is correct as Ms Dobie says that the Court Appeal in paragraph 89 say only that section 1(4) does not have the effect for which Ms Dobie contends "in every case" and so leaves open the possibility that it does have that effect in some particular case. However, no examples (or implications) are given by the Court of Appeal of any such case

b) It is also correct that there is some theoretical incongruity where the school is deemed to be (vicariously) liable for alleged acts of the teacher but the teacher is able to contend that they have not committed any wrong in fact or in law. However, it seems to me that that is simply a consequence of the statute where section 1(4) is only concerned to deem there to be (for the purposes of the contribution claim) a liability to the claimant of the school and is saying nothing about whether or not there was a liability of the teacher to the claimant; it only relates to the school's liability and not to the separate consideration of the teacher's alleged liability; the extent of its deeming is a limited one and any incongruity is simply the result of there being a deeming, a matter which tends to throw up incongruity

c) In any event, I have carried out the iterative construction exercise in the light of Perry v Merriman and the guidance of the Court of Appeal, and in particular where I see the concept of the teacher in some way being prevented from advancing their factual defence (which is not a collateral one such as limitation but fully substantive and direct) because of an agreement between school and claimant so startling that I cannot see that Parliament could have intended such a consequence simply by using the wording of section 1(4).

61. I therefore reject Ms Dobie's first argument.
62. I turn to Ms Dobie's second argument, that the teacher has no real prospect in success on the factual issues of whether he committed the alleged wrongful sexual assaults. Ms Dobie relies on the rape conviction and on section 11 of the Civil Evidence Act 1968:

"11 Convictions as evidence in civil proceedings.

(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or of a service offence (anywhere) shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.

(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or of a service offence—

(a) he shall be taken to have committed that offence unless the contrary is proved; and

(b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose.

(3) Nothing in this section shall prejudice the operation of section 13 of this Act or any other enactment whereby a conviction or a finding of fact in any criminal proceedings is for the purposes of any other proceedings made conclusive evidence of any fact.

(4) Where in any civil proceedings the contents of any document are admissible in evidence by virtue of subsection (2) above, a copy of that document, or of the material part thereof, purporting to be certified or otherwise authenticated by or on behalf of the court or authority having custody of that document shall be admissible in evidence and shall be taken to be a true copy of that document or part unless the contrary is shown…"

63. Ms Dobie relies on the conviction. I note that in CXX v DXX [2012] EWHC 1535 it was held that a defendant, as the teacher is here, can seek to argue that a conviction was wrong but on a summary judgment application the Court will look at the matter very carefully before considering, where a conviction exists, that there is any real prospect of the defendant teacher succeeding on this issue at trial.
64. I note also that the teacher has not sought to appeal against the conviction. I do have difficulty in understanding why he has not done so where on his case he was unjustly convicted and he says that he now has material, not adduced (or he says available) at the criminal trial, to demonstrate the conviction is unsafe or unsound. Further much of the material relied upon by the teacher now is not necessarily inconsistent with sexual assault by abuse of position; there a victim may appear to consent or even to initiate but be unable in fact or in law to properly or validly consent.
65. However, having considered the material adduced, and which is substantial and where I have no evidence to prove that it was available to or at the time of the criminal trial, I find, with some reluctance, that the teacher does have real prospects of success on these factual (and related legal) questions of whether he committed the alleged wrongful assaults. As to this I consider in particular as follows:

i) The teacher has produced substantial written material which could substantiate a defence that nothing actual happened in terms of sexual contact as opposed to, possibly, fantasy; and which, on one reading, could be inconsistent with the claimant's contentions that she was the victim of a number of assaults. I say no more than "could" but it does provide some substance for the teacher's version of events such that it is more than mere verbal assertion; and also for attacking the claimant's veracity

ii) I am not in a position to analyse this material (or whether it was or should have been available at the criminal trial) in context. I do not have any transcript or description of the criminal trial

iii) It is correct that one jury decided to convict the teacher on one count of rape, and would have applied the "beyond reasonable doubt" criminal standard of proof. However, that was on the basis of the material then before the jury, and where a previous jury had been unable to agree, and where section 11 of the 1968 Act only provides for a presumption which can be displaced

iv) Where the teacher is in prison and contends that that Prison Service have caused him to lose documents, there would seem to be some potential for more to surface.

66. I have noted that the teacher has asserted that the claim against him by the Claimant was limitation barred (albeit subject to a possible section 33 of the 1980 Act extension). However, that is of no assistance to the teacher in relation to the school's contribution claim in view of the terms of section 1(4) of the 1978 Act (and as interpreted in WH Newson) and where limitation is only a collateral procedural matter and not a substantive defence as it is not a matter which extinguishes any claim of the claimant. Further, the school's claim against the teacher is not limitation barred as it has been brought within the time limited by section 10 of the Limitation Act 1980 i.e. two years of relevant settlement.
67. However, I do regard the teacher's case as "shadowy" and that if his defence was allowed to proceed I consider that this would be a classic case for consideration of whether the teacher would only be allowed to defend if he paid over or into court money or granted some security in relation to the claim on an interim basis – see CPR3.1(3) and CPR24.6.
68. I now turn to Ms Dobie's third ground for seeking summary judgment, her contention that the teacher cannot contest liability to the claimant, and hence to make contribution, in view of the liability judgment against him for damages to be assessed. There are in fact two such judgments; the first being the Order of 15 June 2021 (i.e. the June 2021 Order). This provided that judgment in default would be entered automatically if a Defence was not filed by 20 July 2021 and none was so filed. The Order provided that an application could be made to have it set aside or varied but none was made (or at least not by an Application Notice as required by CPR23.3 unless dispensed with by the Court and which has not occurred).
69. There was also the Order of 22 March 2022, the March 2022 Order. I note here that that Order was made against the teacher on paper (without a hearing) and without the teacher's knowledge. I also note that the teacher would have been entitled to apply to set aside that judgment within 7 days of service of it upon them (see CPR3.3(5) and/or CPR23.8) and that that should have been mentioned within that Order (see those rules) but was not.
70. The teacher says the March 2022 Order meant that the teacher was only liable for £1 and so he could not face a claim for a greater sum from the school. He says further that the effect of section 1(5) of the 1978 Act is that the March 2022 Order amounts to a judgment in his favour and is conclusive in limiting the amount that he has to pay anyone, including the school which was a party to that judgment. The teacher also points out that he was unable to attend the
71. As to that, it seems to me that the March 2022 Order has to be construed as a whole, looking at all the words in the context of the then factual matrix of all the facts as then reasonably known to all of the parties (i.e. including the teacher) and the objective commercial purpose of the settlement (applying an holistic iterative approach of looking at all the possible meanings and asking what the reasonable reader would consider to be the correct interpretation and not engaging in a process of discarding meanings one by one and falling back on some default meaning) – see e.g. Arnold v Britton 2015 UKSC 36.
72. Here the March 2022 Order says that the settlement offer from the school was being accepted by the claimant, this being in the context of a claim where the teacher was being sued for alleged wrongs committed by him, the school was being sued in vicarious liability for the alleged wrongs of the teacher, the school had already commenced a contribution claim against the teacher seeking a 100% (or less) contribution, and the claimant was entitled to a default judgment on liability against the teacher as a result of the teacher's failure to file a defence and the specific provisions of the June 2021 Order. The teacher further says that it was no fault of his, but rather that of the prison, that he could not attend the hearing which resulted in the June 2021 Order.
73. In those circumstances, I do not see that the March 2022 Order should be read as a judgment that the teacher was only ever liable to the claimant for £1 in damages. That would be entirely inconsistent with the school being liable for its agreed settlement sum, where the allegations were simply that the school was responsible for the teacher's wrongful conduct, and would also render an effective giving-up by the school of its contribution claim where one would have expected express words to appear had that been intended.
74. In the circumstances, I think that (and that it is clear that) the reasonable reader would interpret the March 2022 Order as follows. The school was settling with the claimant; and all that the £1 judgment against the teacher was doing was providing that (a) judgment on liability was being entered against the teacher But (b) it had been agreed between the claimant and the school that the claimant's total recoverable damages were the total of a settlement sum which the school was to pay plus £1 and, as the school were paying the settlement sum to the claimant, the claimant could not obtain any more than the other £1 from the teacher (and so as to avoid double recovery). Although I have borne in mind that the reasonable reader would know (as part of the factual matrix) that the teacher did not know at that point what was the school's settlement sum it was going to pay the claimant, the reasonable reader would still see there as being, but only being (apart from the £1), a liability judgment against the teacher, and would not see there as being any judgment to the effect that the teacher's liability to the school was only ever £1, and in particularly not so as to affect the subsisting contribution claim of the school against the teacher. The reasonable reader would interpret the March 2022 Order by concluding that it was not intended to prevent the contribution claim being continued in relation to the settlement sum being paid by the school to the claimant in relation to the wrongs for which judgment (on liability) was being entered against the teacher in relation to a claim which the teacher had failed to defend.
75. In my judgment, I can deal with this aspect under the reverse summary judgment provisions of CPR24.3. Here there are one, or more probably technically two (as the June 2021 Order provided for an automatic entry of a default judgment), judgments to the effect that the teacher was liable to the claimant in relation to the subject-matter of the Claim. Those judgments are binding on the teacher, and so the teacher cannot challenge them as against the school (or the claimant). These are, each and both, clearly Orders providing that in consequence of the teacher's failure to file and default in filing a Defence, damages are to be assessed to be paid by him. The June 2021 Order said that this result was an automatic one and so no need for any further Order if the teacher's Defence was not filed in time. It does not matter that the teacher did not and could not attend the relevant hearing; what that order provided was that he had to either serve a Defence or make an application to set aside the June 2021 and he did neither. The March 2022 Order was a simple judgment for an amount. Thus, they are both clearly (default) judgments on liability.
76. I have considered carefully as to whether the teacher should be able to seek to have disapplied or set aside either Order and if so whether either order should be set aside or disapplied. I have decided that they should not for the following reasons:

i) The teacher did not file (or serve) an Acknowledgement of Service as required by CPR10.3 or a Defence as required by CPR15.4

ii) The teacher did not comply with the June 2021 Order regarding serving a Defence, and which provided for default judgment on liability to be entered automatically

iii) In consequence a default judgment came into existence automatically and without further order of the Court under the June 2021 Order although also under the March 2022 Order

iv) It does not seem to me that the creation and filing of a Defence would have been anything other than a relatively simple and easy exercise for the teacher. This, despite him saying it would be a complex and difficult exercise. I regard that as a mis-statement of what he had to do at that stage – it was simply to respond to the Particulars of Claim in a short and simple document which would essentially have just denied that he had assaulted or, indeed, had any sexual contact with, the claimant

v) To set aside a default judgment would require an application under CPR 13.3:

"13.3

(1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order)"

vi) That would require the teacher to show that he has a reasonable prospect of defending the claim, which I have already held with hesitation that he would, but that is not sufficient. In FXF v English Karate Federation Ltd [2023] EWCA Civ 891 it was held that to set aside a default judgment invokes the CPR3.9 relief from sanctions regime:

"3.9

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

(2) An application for relief must be supported by evidence."

and thus the 3 stage approach set out in Denton v White 2014 EWCA Civ 906 of asking (i) has there been a serious or substantial breach (ii) was there good reason for it (iii) in the light of (but not controlled by) the answers to (i) and (ii) has the applicant discharged the heavy burden of showing it to be just in all the circumstances to obtain relief giving real weight to the CPR3.9(a)&(b) factors but also (CPR13.3(2)) whether the defendant has applied promptly

vii) As to the application of the relief from sanctions regime:

a) I consider there has been a serious and significant breach by the teacher. He simply failed to file a Defence (or an Acknowledgement of Service) and for a very considerable time

b) I do not accept that there was good reason for such breach(es). I accept that the teacher was in prison, which resulted in difficulties and exacerbated difficulties of his mental health, but he had ample time and knowledge of what he needed to do as to preparing and advancing a Defence, and which I have held above would have been a fairly simple exercise

c) I bear the above in mind when looking at all the circumstances. There:

i) The teacher's application to set aside or challenge the default judgment(s) were only made in 2024 during the progress of the summary judgment application in the school's contribution claim. That is not, on any basis, "prompt" (even thought that phrase only means "with reasonable celerity in the circumstances). Further, the teacher knew himself that he needed to make an application in 2021, as he said in his correspondence with the Court in 2021 to which I have referred. The teacher also at least ought to have known that the school's contribution claim was being pursued and ought to have read the March 2022 Order and understood it (as I have held that a reasonable reader obviously would) as to the claim being dealt with as between the claimant and the school, and as between the claimant and the teacher, but not as between the school and the teacher

ii) While I accept the teacher's statements that at times he was on the edge of a nervous breakdown, it seems to me that he had a great deal of time to do something relatively simple in providing a Defence, and in circumstances where he should have known throughout that the school was pursuing him

iii) The CPR3.9(a) factor does seem to me to be in point and have weight. The teacher only now seeking to put forward a Defence will result in there having been and being serious disruption to the litigation which will have (if that is permitted) been dealt with in the past on a false basis and been much delayed

iv) The CPR3.9(b) fact also does seem to me to be in point and have weight. The teacher knowingly failed to comply with orders which, in fact, would have been relatively simple and easy to comply with

v) The fact that a defendant is a litigant in person does not excuse non-compliance with rules and orders – see Barton v Wright Hassall 2018 UKSC 12. Here the teacher did not even make an application when told how to do so by the court staff

d) I have considered all of the circumstances together (including all those set out above) and consider that this is a situation where I should not set aside the default Judgements. I do not regard the teacher as having discharged the relevant burden of showing that it is just in all the circumstances for the Judgments to be set aside. There is a significant and substantial breach of both the rules and an order with no good reason for it and an absence of promptness and which breach has affected the course of the litigation.

77. The consequence of the default Judgment(s) is that the teacher is to be deemed to have committed the wrongs asserted by the claimant, and the teacher cannot say otherwise against the school, both the matter is res judicata (decided by the court so as to give rise to an issue estoppel) and it would be an abuse of process for the teacher to challenge it. I hold that the teacher has no real prospect of success in contending otherwise as that would be inconsistent with the default Judgment(s) and which are not to be set aside. I can see no other compelling reason for a trial.
78. In consequence, the teacher is to be deemed to have been liable to the claimant for the damage for which the school is deemed to have been liable to the claimant as a result of the bona fide settlement (section 1(4) of the 1978 Act) and the teacher has no real prospect of contending otherwise and I can see no other compelling reason for a trial. In consequence, it follows from the provisions of section 1 of the 1978 Act that the school is entitled to contribution on that basis and the teacher has no real prospect of contending otherwise and I can see no other compelling reason for a trial.
79. I then next need to consider the amount of contribution to order and have applied section 2 of the 1978 Act. The question is what is just and equitable having regard to the teacher's and the school's responsibility for the damage suffered by the claimant.
80. The teacher says that the school did not give the teacher proper guidance and allowed the claimant to be out of control. I do not agree that even if that is right it makes any difference. The wrongs were committed by the teacher and were serious sexual assaults committed against a child or, even once the claimant was 18, a person over whom the teacher had authority and a position of trust. The teacher took the decision to commit the wrongful acts where the teacher must have known (and to the extent that they did not subjectively appreciate, ought to have known) that they were wrongful and should not occur – that is obvious in terms of rape and assault but also so where the claimant was a child at the school under the care of the teacher.
81. It seems to me that the appropriate contribution in those circumstances is clearly 100% and that that is reinforced by such similar "committer of wrongs" cases as KD v Chief Constable of Hampshire 2005 EWHC 2550 and Mohdin v Commissioner of Metropolitan Police 2016 EWHC 105 (and which make clear that the contribution can also extend to the costs which the person who is secondarily liable (here the school) has had to pay to the victim (here the claimant) of the primary wrongdoer (here the teacher) D1). It seems to me that the teacher has no real prospect of contending otherwise and I can see no other compelling reason for a trial of the 100% percentage of damages element.
82. What is more of a question, and with which I now have to deal, is as to what are the right figure(s) to order the teacher to pay the school where there are two separate limits, being:

i) The amount which the school actually agreed to pay the claimant, apart from questions of the school's own costs the school cannot seek more than it paid; and

ii) The amount of damages for which the teacher was ever liable to the claimant (assuming that, absent the settlement agreement and the March 2022 Order, the claim had proceeded to an assessment of damages against the teacher). The school cannot claim more than the teacher's original liability – see section 1(1) of the 1978 Act and Perry v Merriman.

The position on costs is perhaps more flexible but, again, at least in principle, the teacher should not have to pay the school for any amount which the school has overpaid.

83. Here again I proceed on a summary judgment analysis, although I note that I could always order an interim payment (CPR25.7) although that would have to be limited to a reasonable (although it can be a high) proportion of the likely end amount (CPR25.7(4)).
84. I can only apply a broad brush approach on the material before me and I have looked to establish a minimum figure as to the amount which I consider would be awarded in any event at a full assessment with evidence.
85. I do not see any real prospect of an assessment reducing the claimant's asserted, particularised and evidenced special damages figure below 50% of the amount claimed and therefore a take a figure of £3,000 for it.
86. As far as general damages for pain, suffering and loss of amenity is concerned, the Judicial College Guidelines at the relevant time set out a range of £20-45,000 for moderate sexual/physical abuse and £45-120,000 for moderately severe sexual/physical abuse. They refer to relevant matters influencing the level of the award as follows:

"(C) Sexual and/or Physical Abuse

The cases in this section include damages for the sexual and/or physical abuse itself as well as any psychiatric injury caused to the injured person. This section will also be relevant in injury following image-based abuse. In many cases there is also an element in the award of general damages for the indignity, mental suffering, humiliation, distress, or anger caused by such an attack. This is sometimes characterised as aggravated damages, but more properly is injury to feelings and is included in the brackets below. Where the element for injury to feelings has been broken down in reported cases, which is usually where there is significant injury, the range is usually in the region of £18,310 to £30,510 [these figures were then less].

The factors to be taken into account in valuing general damages for the abuse and the psychiatric injury in claims of this nature are as follows:

(i) the nature, severity, and duration of the abuse and any physical injuries caused;

(ii) the nature and duration of the psychological injury and its effect on the injured person's ability to cope with life, education, and work;

(iii) the effect on the injured person's ability to sustain personal and sexual relationships;

(iv) abuse of trust;

(v) the extent to which treatment would be successful;

(vi) future vulnerability;

(vii) prognosis for psychological injury.

Aggravating features which would lead to an additional sum for injury to feelings include:

(i) the nature of the abuse;

(ii) the level of abuse of trust;

(iii) any manipulation following the abuse to stop reporting of the abuse, or to seek to put blame on the injured party;

(iv) the need for the injured party to give accounts and evidence of the abuse in criminal or civil proceedings, or in any other relevant investigation…

(b) Moderately Severe

In these cases the injured person will have suffered serious abuse and/or severe or moderately severe and prolonged psychiatric injury. Cases in this category will not have both serious and prolonged abuse and severe or moderately severe and prolonged psychiatric injury but may have one of those features. At the upper end the abuse will have had serious effects on their ability to cope with education, work, and to sustain personal and sexual relations. There may be elements of false imprisonment. Where, despite the seriousness of the abuse and problems caused, the prognosis is good, the lower end of the bracket is appropriate.

(c) Moderate

Cases where the abuse is less serious and prolonged and there is a less severe psychological reaction with fewer effects on education, work, or relationships. This bracket also includes cases where there has been a more serious level of abuse, but the psychological reaction is limited and is either resolved or the prognosis is good. There may be some aggravating features."

87. I have considered the psychiatric report obtained by the claimant, and which included reference to:

i) The claimant's preceding (the assaults) condition of Dystonia, but which left her in a state of vulnerability

ii) A paragraph "5.7.1 Following the Index abuse the claimant had suffered with fluctuating depressive symptoms; anxiety; low-self-esteem; a suicide attempt in response to a relationship breakdown; problems with anger control and difficulty with her sexual functioning. The Dystonia had also deteriorated." The expert said that they did not have the expertise to comment on any relationship between the assaults and the Dystonia

iii) The claimant taking an overdose following a relationship breakdown

iv) The claimant having suffered an adjustment disorder resulting in being prescribed an anti-depressant for a short time, and to which the assaults had materially contributed

v) The claimant having suffered a recurrent depressive disorder resulting in being prescribed anti-depressants, and to which the assaults had materially contributed

vi) The claimant having suffered flashbacks as part of a further adjustment disorder (but not post traumatic stress disorder), and to which the assaults had materially contributed

vii) The assaults having had significant effects on her ability to conduct sexual relationships and sexual functioning

viii) The assaults having had significant effects on her relationships with her parents

ix) The assaults having given rise to risks of the claimant suffering episodes of depression in the future

88. I have to take into account the claimant's pleaded case which relates to numerous wrongful assaults and types of wrongful assault over a sustained period of years, and where the finding by the jury of one rape which took place in a situation of abuse of position of trust justified a sentence of 11 years. Those matters are all relevant to aspects of the Guidelines, but also lead, in my view, to a situation where the claimant would have been very likely to have received an award of aggravated damages at a trial as well as ordinary general damages.
89. Here the evidence and the nature and duration of the wrongful assaults results in each of the Guidelines' general factors being in point, as well as the aggravating factors of the level of the nature of the abuse, the abuse of trust, and the claimant having (as a result of the pleas of not guilty) to give evidence in the criminal proceedings and having to bring the civil proceedings to obtain compensation. The various injuries set out in the psychiatric report could well take the matter into the moderately severe level.
90. In my view, the teacher, on the assumption, which I must make, that he committed the assaults alleged by the claimant, would have had no real prospect of only being held liable at a contested trial to the claimant for any figure for general (and any aggravated) damages less than £40,000 (i.e. close to the top end of the moderate sexual/physical abuse band; although, in my view, it would likely to have been substantially higher than that) in addition to the £3,000 special damages. I can see no other compelling reason for a trial in these circumstances.
91. It therefore follows that, where the school managed to settle for £40,000 damages in all, in the light of my previous findings of fact and law, I should order the teacher to make 100% contribution in the sum of £40,000 in relation to the damages aspect as the settlement sum was no more than (and I see as being very likely to be less than) the overall amount for which the teacher would have bound to have been held liable in any event.
92. I turn to the costs which the school agreed to pay to the claimant as part of the settlement, being the claimant's cost of bringing her claims.
93. In principle, it seems to me to be entirely just and in accordance with the 1978 Act and the authorities which I have cited above that I order that the teacher should pay, both as part of the contribution and also (under Civil Procedure Rule 44.2) as an unsuccessful party to the litigation who should pay the costs of the successful parties (the claimant and the school), for the claimant's costs. This being in circumstances where it seems perfectly reasonable to me for the school to have carried on with the litigation for a limited period of time in order enable the school to investigate it (and seek to find any weaknesses in the claimant's case) and to seek to negotiate the asserted level of damages down (and the school did with what I see as very real success in terms of the ultimate difference between the settlement figure for damages and (a) the amount sought by the claimant, and (b) the amounts which I think (from the above evidence) that the claimant might have obtained at a contested trial.
94. The claimant originally sought £84,913.70 in relation to costs and provided substantial schedules of relevant work done and costs attributed to it. The school negotiated the claimant down to £72,500. The teacher would say that even that amount was excessive.
95. This gives rise to potentially complex matters. The school says that the compromise figure amounted to reasonable mitigation on its part. The teacher would say that a mere 15% reduction on a standard basis assessment approach is unreasonably low.
96. Here I have borne in mind the provisions of CPR43.3 and 44.4:
97. " 44.3

(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

(a) on the standard basis; or

(b) on the indemnity basis,

but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

(Rule 44.5 sets out how the court decides the amount of costs payable under a contract.)

(2) Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

(Factors which the court may take into account are set out in rule 44.4.)

(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.

(4) Where –

(a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or

(b) the court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis,

the costs will be assessed on the standard basis.

(5) Costs incurred are proportionate if they bear a reasonable relationship to –

(a) the sums in issue in the proceedings;

(b) the value of any non-monetary relief in issue in the proceedings;

(c) the complexity of the litigation;

(d) any additional work generated by the conduct of the paying party,

(e) any wider factors involved in the proceedings, such as reputation or public importance; and

(f) any additional work undertaken or expense incurred due to the vulnerability of a party or any witness…

98. 4

(1) The court will have regard to all the circumstances in deciding whether costs were –

(a) if it is assessing costs on the standard basis –

(i) proportionately and reasonably incurred; or

(ii) proportionate and reasonable in amount, or

(b) if it is assessing costs on the indemnity basis –

(i) unreasonably incurred; or

(ii) unreasonable in amount.

(2) In particular, the court will give effect to any orders which have already been made.

(3) The court will also have regard to –

(a) the conduct of all the parties, including in particular –

(i) conduct before, as well as during, the proceedings; and

(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;

(b) the amount or value of any money or property involved;

(c) the importance of the matter to all the parties;

(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;

(e) the skill, effort, specialised knowledge and responsibility involved;

(f) the time spent on the case;

(g) the place where and the circumstances in which work or any part of it was done; and

(h) the receiving party's last approved or agreed budget.

(Rule 35.4(4) gives the court power to limit the amount that a party may recover with regard to the fees and expenses of an expert.)"

99. I bear in mind that on a standard basis assessment, the claimant could only recover what was reasonable and proportionate; and that the burden would be on the claimant to so that any doubt as to whether costs had been reasonably incurred or were reasonable in amount or were proportionate to the matters in issue would be resolved in favour of the paying party i.e. the school.
100. While I have considered the circumstances generally, and all the individual facts set out in CPR44.3(5) (proportionality) and CPR44.3 (reasonableness and proportionality), I have also borne in mind in particular the following:

i) the damages level claimed were in the region of the level of the costs agreed, although the actual quantum of damages agreed was much lower

ii) sexual abuse litigation is litigation which is complex and demands levels of skill and expertise

iii) the matter of there being awarded proper compensation for sexual abuse is a matter of considerable public importance as well as being of importance to the parties and in particular the claimant who has been the victim of very serious sexual wrongdoing.

101. However, having looked through the Schedule of Costs produced by the claimant, it does seem to me that the costs of the claimant's solicitors seem distinctly high, and thus potentially subject to challenge. However, I am not in a position at this hearing to carry out some full costs assessment exercise. and which would be best carried out by a costs judge.
102. I have therefore decided that I should not deal with this aspect by way of a full summary judgment extending to quantum as well as just liability but by way of an interim payment. I will order an interim payment to be made by the teacher to the school of £60,000, which is something close to two thirds of the amount of costs which the claimant was claiming, and where I do not think that there is any real prospect of the teacher (even with the burden of resolving any doubt being on the school/claimant) establishing that that figure is more than costs reasonably incurred by the claimant and reasonable in amount and proportionate to the matters in issue. If I am wrong and the appropriate amount turns out to be less then, as this is an interim payment only, there can be an adjustment. I will direct that the issue of actual quantification will be referred to a costs judge for determination.
103. I therefore order that the teacher should make 100% contribution to the school in relation to the £40,000 agreed between the school and the claimant, and should also pay the lesser of £72,500 or the amount which would be found due on a standard basis assessment of the claimant's costs of the litigation with an interim payment of £60,000.
104. As to the costs of the school as against the teacher, I will hear the parties further. My first thought is that the school, as the successful party, should have an order for the teacher to pay its costs, to be the subject matter of a detailed assessment, but I will hear the parties further as to that aspect.

Approved


25.3.2025