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TCD v Harrow London Borough Council (1), High Court, 10 December 2008

2 February 2009
The issues

Limitation – exercise of discretion under Section 33 – child abuse.

The facts

The Claimant, TCD, claimed against three Local Authorities in respect of historic child abuse. At the time of the Appeal she was nearly 42 and the allegations related to the period between 1975 and 1981, over a period when she ranged to 8 to 14 years of age. She lived within the London Borough of Harrow until November 1977. Between November 1977 and January 1979 she lived in Redditch, within the area of the Second Defendant, Worcestershire County Council. Thereafter, until 1981, she lived within the area controlled by Birmingham City Council, the Third Defendant. The essence of her allegations was that she was allowed to live with a man called ‘DH’, together with one or other of his partners over the relevant period, despite the fact that he had convictions for sexual offences going back to the 1960’s. He began assaulting her on her 8th birthday and pleaded guilty to indecent assault in December 1977 in the Magistrates Court. He was put on probation for 2 years and shortly thereafter returned to the family home. Over the following year the Claimant stayed with ‘H’ and a new partner from time to time in the course of access visits until in February 1979 she went to live with them permanently. The abuse was resumed and she was later raped on a number of occasions. She reported the matter in October 1981 whereupon, after considerable delay, DH was convicted of rape. He was sentenced to 5 years imprisonment. Her proceedings began in December 2006.

The sole matter for the Judge was whether or not the claims were statute barred. In particular he had to decide whether the Claimant had relevant knowledge for the purposes of Section 14 of the Act and whether, if she did, the Court’s unfettered discretion should be exercised to allow her to continue with these proceedings, notwithstanding the expiry of the limitation period.

The decision

On the facts TCD was fixed with knowledge, at least from the time of attaining a majority of the relevant facts for the purposes of Section 14. By the time she obtained her majority she knew that she had been abused from her 8th birthday by her adoptive father and later raped; that he had already been convicted of indecently assaulting her; that there were at least family rumours to the effect that he had committed some forms of sexual offence; but at the rape Trial in 1982 the Judge had highlighted the shortcomings of at least one Social Services department as to her protection and welfare; that she had not been removed from H’s care and placed in a safe environment until October 1981; that she was suffering continuing psychological trauma as a result of the abuse; and that she had lived at various addresses and could have established, without difficulty, which were the relevant Local Authorities. On this basis it could safely be said that she knew enough to make it reasonable for her to begin to investigate whether or not she had a case against any of the relevant Local Authorities.

The Exercise of the Court’s Discretion.
If the claim were permitted to proceed against Harrow, the claim would involve consideration of events between 1967 and 1977. The running logs of the period were missing, which might be expected to record contact and contemporaneous assessment of the Claimant’s best interests. The Council needed to know what, if anything, it advised or recommended in relation to the adoption either from personal recollections or documentary records. If there were a strong prima facie case against it on the basis of inference it became all the more critical to be able to mount an explanation by way of defence. It was a question not only of establishing what was or was not done but also of assessing it against the standards of the time. Research had been carried out in order to establish whether after all these years any relevant witness remained available to offer any cogent recollection of the events and the answer was in the negative. This was a very serious prejudice to the First Defendant, brought about largely by the long delay and a fair Trial was not possible.

In respect of the Second Defendant, Worcestershire, its involvement with the Claimant was shorter. Their records showed that the Claimant’s interests were monitored regularly and there was no evidential basis for suggesting that the Claimant should have been taken into care during that time. There was an absence of a realistic prospect of success for the Claimant’s claim against the Second Defendant. There was no sufficient evidence of a breach of duty such that justice required this application of the limitation period. In respect of the Third Defendant there was evidence as to the considerable efforts made to track down witnesses and documents and the upshot was that much had become untraceable. The Third Defendant would be significantly hampered in its task through gaps in the documentation and lack of personnel and a fair trial of the issues was not going to be possible.

As was observed by Lord Brown in AV Hoare, by no means everyone who brought a late claim for damages for sexual abuse, however genuine the complaint might be, could reasonably expect the Court to exercise the Section 33 discretion favourably. A fair trial was in many cases simply impossible after a long delay. Although the discretion was unfetted and had to be addressed in the light of all the individual circumstances of the case, 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 required a balancing of all relevant factors and their interests had to be taken into account. There was a public interest in certainty and finality and such considerations ought not to be lightly discounted, especially on the basis of sympathy for an individual litigant, even where there was or might be a strong case on liability and causation.

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