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T v Boys & Girls Welfare Service, Court of Appeal, 21 December 2004

6 January 2005
The issues

Limitation – Sexual Abuse

The facts

The Claimant brought proceedings in 2002 alleging sexual abuse and claiming damages for emotional and psychological damage. The abuse had allegedly been committed by a member of staff at a community home managed by the Defendant. The Claimant was aged 12 when he had been placed in the home in 1975.

The Defendant pleaded limitation. The matter was dealt with at a preliminary hearing. At the preliminary hearing the Judge found that the date of knowledge had expired in 2000 and he decided not to exercise his discretion under Section 33 of the Limitation Act. The Claimant appealed.

The decision

The Judge had stated that the relevant period of delay was the two years after expiry of the limitation period. The Claimant had argued that the extra two years was a relatively short period of time and would not have affected the cogency of the witness evidence.

However, the matter was one for the Judge’s discretion. The Judge had had to consider whether or not a fair Trial was possible. The abuse was uncorroborated by evidence. The home’s records had been lost or destroyed. The evidence of the Doctor who interviewed the Claimant in 1997 would be less cogent because of the delay.

By the time the claim was brought 28 years had passed since the events that were the subject of the claim. The first notice that the Defendant had had was in the Claim Form. There was no answer to say that prejudice had only been marginally increased by the fact that the claim was made 2 years after the limitation period had expired.

Section 33 was only available in special cases and it was for the Claimant in any particular case to establish that his claim was one of those cases. The mere fact of being asked to deal with a stale claim was itself prejudice. The policy of the law was to permit people and organisations to arrange their affairs on the basis that there came a time when they should not be asked to meet such claims. The Judge had been entitled to find that the case did not come within the category of those where an exception could be made under Section 33 – See KR v Bryn Alyn Community (Holdings) Limited.

Appeal dismissed.

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