Do you ever read a case report and think, wise judgment? That was my immediate reaction after reading this too-familiar story of “historic abuse”. The case is Raggett v The Society of Jesus Trust 1929 for Roman Catholic Purposes (1) & The Governors of Preston Catholic College (2). The case was decided just 15 days before the Irish Commission to Inquire into Child Abuse reported after it was established on 2000. Her Honour Mrs Justice Swift was asked to determine whether or not the Claimant had been sexually abused during his time as a pupil at Preston Catholic College by one Father Spencer, a Jesuit priest and teacher, and if so to what extent? Further, was the claim statute barred and if so would it be just and equitable to allow it to proceed?

The findings regarding the abuse are findings of fact – suffice to say the judge found that “the claimant was the victim of a sustained course of sexual abuse and assaults by Father Spencer” which went on for a period of about 4 years.

Was the claim statute barred under the provisions of sections 11 to 14 of the Limitation Act 1980? The relevant provisions are set out in paragraph 86 of the judgment and probably well known to my readers so I will not repeat them here. Mrs Justice Swift applied the objective test of date of knowledge as enunciated by Lord Hoffman in the leading House of Lords case of A v Hoare and Ors. She said:

Applying the “practical and relatively unsophisticated approach to the question of knowledge” advocated by Lord Hoffmann in Hoare, it seems to me that the claimant must be taken to have “known”, from the time the acts of sexual abuse were committed, the nature and extent of those acts of abuse and the immediate effects they had had upon him.

In deciding whether the respondent knew that he had suffered a significant injury in the sense required by section 14(2) of the 1980 Act, I take into account the nature and extent of the abuse as I have found it to be. It is of course true that the abuse resulted in no physical injury to the claimant. It was not (as I have found) penetrative. Nevertheless, its frequency, its duration (the individual “football coaching” in the holidays could last all day), the period of years over which it was committed and the intense feelings of violation, dread, isolation, shame and humiliation that the claimant described experiencing at the time must, if true, all have combined together to produce significant psychological effects. The fact that the claimant was aware of at least some of those effects is demonstrated by the fact that he considered Father Spencer’s behaviour of sufficient significance to mention to Dr Fry in 1996 and that he felt the need to “confront” Father Spencer with it in 1999. Those effects, viewed objectively, should in my view have been recognised by a reasonable person as being sufficiently serious to justify instituting proceedings against a compliant defendant with means. In reaching this view, I bear in mind the words of Smith LJ to which I referred at paragraph 98 of this judgment. There will, I recognise, be examples of transient and relatively minor abuse which would not be characterised as having involved an injury which is “significant” within the meaning of the 1980 Act. Having regard to the features I have mentioned, however, I do not consider that is the case here.

The claim was therefore statute barred. Was it just and equitable to allow it to proceed under section 33 of the Limitation Act? This requires a balancing of the prejudice to the Claimant of disbarring the claim against the prejudice to the Defendant of allowing it to proceed. The heavy burden of showing it is just and equitable lies on the Claimant.

Mrs Justice Smith considered the reasons for delay (a substantial period of 33 years) and concluded;

I have already found that, as is not uncommon in cases of sexual abuse, the complainant had to some extent suppressed his memories of the nature and the extent of the abuse. More particularly, however, he had contrived to suppress many of the emotions associated with the abuse. His attitude was to make light of the incidents of abuse which he did recollect and to view Father Spencer with amusement and pity – even some affection. His state of denial was such that, in 1991, he invited Father Spencer to officiate at his wedding and, in 1996, he denied to Dr Fry that he had been sexually abused by Father Spencer. It seems inconceivable that the claimant would have done either of those things if he had consciously recognised prior to April 2005 that Father Spencer had sexually abused him.

Considering the effects of the delay on the Defendant’s ability to defend the action a distinction was made between this type of vicarious liability claim and claims alleging systematic negligence on the part of the defendant. The latter kind may well require documents and oral evidence on contemporaneous practice, procedure and supervisory regimes. Such evidence is unlikely to be available 30 years on. The judge reminded herself of the need to exercise caution assessing the cogency of the Claimant’s evidence. Reviewing the wealth of supporting evidence (6 witnesses came forward voluntarily shortly before the trial with no particular axe to grind, some not even knowing the identity of the Claimant) she concluded “the second defendants were always going to experience great difficulties in persuading a court that the claimant’s allegations were untrue or exaggerated.”

Finally what about the prejudice to the Defendants caused by the death in 2000 of Father Spencer and his unavailability as a witness?

Viewed realistically, however, it is difficult to envisage circumstances in which a denial of the abuse by Father Spencer (assuming he had denied it) would have prevailed over the evidence of the claimant and his witnesses. In particular, he could have had no plausible innocent explanation for the contents of his letter of 28 June 2000. Nor would a denial from other members of staff at the College (in addition to Father Edwards, who provided a witness statement) have been likely to be determinative. They may have been understandably reluctant to admit having any knowledge of Father Spencer’s activities. They may genuinely not have been aware of them – as Mr Malone was apparently unaware of the deeply unsatisfactory behaviour of Father Spencer which led to Father Wren’s letter requesting his removal from the College. I regard it as highly unlikely that the availability of other members of the staff of the College would have improved the second defendants’ prospects of succeeding on the issue of liability. As to documents, most of the second defendants’ documentation was still in existence and they were not able to point to any specific document(s) which were unavailable and would have been likely materially to have affected the outcome on liability.

The conclusion was that the Claimant had satisfied the court that it would be just and equitable to allow the claim to proceed. That of course is not an end to this matter. The issue of causation now has to be determined as does quantum. It is clear from reading the judgment that these are far from straightforward issues and both sides still have work to do. It is also apparent from the way the matter has been conducted that both sides have been expertly represented by Clifton Ingram LLP and Berrymans Lace Mawer respectively.

I often reflect, naturally enough, on whether or not a case would be suitable for mediation and what an expert mediator could add to the dispute resolution process. In this case and at this stage – with causation and quantum to be determined – I think  both parties stand to benefit enormously from a mediated settlement. Firstly there is still a lot of legal work to be done before a trial of these issues could be heard. The costs of that preparation and trial will be significant. That is always a concern for the Defendant and for a Claimant who is likely to be on a Conditional Fee Agreement.

Another issue is confidentiality. The public can already learn a lot about the Claimant from reading the on line report of this case and it appears that there will be further scrutiny of the Claimant’s past which he may prefer to avoid by using the confidential mediation process. Further negative publicity from the reporting of Father Spencer’s conduct is unlikely to be welcomed by the Defendants. Both parties will benefit from the efficient risk analysis exercise which is a by-product of mediation, particularly given the costs of this litigation.

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