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Historical Abuse: Balancing the Scales under Section 33
15 December 2008
Introduction
On 10 December 2008 Mr Justice Eady in the High Court gave
judgment in TCD v. Harrow, a case which will be of
interest to those who deal with historical abuse claims. It is one
of the first cases in which the court has considered Section 33
since the decision of the House of Lords in Hoare which
slightly modified the factors to be taken into account under the
section. The decision is more likely to be warmly welcomed by those
involved in the defence of this category of case rather than by
those who represent claimants, but there is significance in it for
both camps.
The claim
The claimant, aged 41, sought compensation from three local
authorities, in whose districts she had lived for different periods
of her childhood, for sexual abuse perpetrated upon her by X, her
adoptive father. X abused her between 1975 and 1981 when she was
aged eight to 14. Limitation was raised and despite opposition from
the claimant, it was ordered to be tried as a preliminary issue.
The two questions for Eady J were:
- Did the claimant know more than three years before she issued
proceedings that her injury was attributable to the acts/omissions
of the councils?
- Even if she did, should the court nevertheless allow her claim
to proceed out of time?
Knowledge
The Judge observed that ‘knowledge’ did not require the claimant
to know the exact role of the local authorities in relation to
child protection nor to understand the law of negligence, but that
she must be shown to have had knowledge of the factual allegations
underlying her claim. He found that when she attained her majority
in 1985 she knew that:
- She had been abused from the age of eight
- X had been convicted of an indecent assault on her in
1977
- There were family rumours that X had previously been convicted
of a sexual offence upon someone else
- She had not been removed from X’s care until 1981
- At X’s trial for rape in 1982 the Judge had criticised at least
one council
- She had been suffering for a long time psychological trauma as
a result of the abuse
- She had lived at various addresses and could easily have found
out which were the relevant councils
He concluded that the claimant was fixed with knowledge from her
18th birthday: she knew enough to make it reasonable for her to
begin to investigate whether she had a case against any of
the councils.
Section 33 discretion
The claim originally made against Harrow was that they had
failed to inform the court which made the adoption order in 1972
that X had previously been convicted of offences of indecent
assault. However, tenacious inquiries by the defendant unearthed in
2007 the court’s file and this showed that it had been informed.
The claimant then shifted her stance and alleged that Harrow ought
to have positively opposed the adoption. The Judge astutely
observed that this sequence of events illustrated clearly the
dangers of leaping to conclusions on the basis of incomplete
records.
Holding that the paramount consideration was the need to have a
fair trial, the Judge noted that some important documents were
missing, e.g. a report from Harrow to the court and Harrow’s
‘running log’, and that a search for witnesses who could offer any
cogent recollection of the events going back some 36 years had been
fruitless. He found that there was serious prejudice to the
defendant.
Turning to the claimant’s reasons for the delay the Judge
declined to accept that her knowledge only dated from the time when
she obtained copies of her records. Secondly, the fact that she had
not felt able to confront the abuse, whilst understandable, was not
a complete answer but had to be looked at against the background.
Thirdly, as to the claimant’s explanation that she had delayed
bringing proceedings until her children were old enough, whilst not
criticising her, the Judge held that it was a matter to be assessed
not in isolation but against the prejudice caused to the defendant
by the delay.
The Judge declined to exercise his discretion in favour of the
claimant. He said:
“…the court should never lose sight of the public policy
considerations underlying the legislative regime governing
limitation periods. Public authorities, as well as commercial
entities and individuals, should not remain exposed indefinitely to
the threat of litigation based upon historic allegations. Fairness
requires a balancing of all relevant factors and their interests
have to be taken into account. There is a public interest in
certainty and finality and such considerations must not be lightly
discounted, especially not on the basis of sympathy for an
individual litigant…”
Comment
This is an admirably balanced and fair approach. It recognises
the difficulty of the position in which local authorities can find
themselves. The decision is helpful for those who have to defend
this category of case.
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