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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> EF v The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors [2016] EWHC 3336 (QB) (21 December 2016) URL: http://www.bailii.org/ew/cases/EWHC/QB/2016/3336.html Cite as: [2016] EWHC 3336 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		The Combined Court Centre, Oxford Row Leeds
		21 December 2016

His Honour Judge Gosnell:

1. The Claimant EF was born on 13^th June 1957, and is now 59 years of age. He had a difficult upbringing and was one of 11 siblings. His father was in the army and his mother struggled to cope with such a large family. In May 1972 at the age of 14 he was made the subject of a care order for an offence of theft and breach of a previous conditional discharge for theft. He was initially assessed at Aycliffe Assessment Centre and placed at St Peter's Approved School in Gainford but on 14^th July 1972 he moved to St William's School in Market Weighton in the East Riding of Yorkshire where he stayed until 7^th March 1973. This case is about what happened to him during his stay at that school.
2. St. William's School

St William's School was founded in or about 1865 as a reformatory school for boys. In 1933 pursuant to the Children and Young Persons Act and the Approved School Rules 1933 it became an Approved School. Boys could be placed or detained there for a maximum of three years up to the age of 17 if: they had been convicted of a criminal offence and received a custodial sentence; or they were found to being need of care or protection; or they were not attending school regularly. In 1973 St William's became an Assisted Community Home and thus became part of a co-ordinated planning system for children in the care of local authorities who placed such children there under care orders. The school was operated by the De La Salle Order and was situated in a rural setting near to Market Weighton including a residential facility. Various local authorities in the vicinity placed boys there where there were extensive grounds. It had classrooms, workshops, a place of worship, a swimming pool, recreational facilities and a working farm. The children were accommodated in separate group units known as houses.

3. The Defendants

The Defendants fall into one of two categories: firstly those connected with or representing the Roman Catholic Diocese of Middlesbrough, responsible for the management of St William's ( variously referred to as the "Diocese of Middlesbrough" or the "Middlesbrough Defendants" ) and secondly the representatives and/ or members of a lay Catholic teaching order, the Institute of the Brothers of the Christian Schools ( De La Salle), ( variously referred to as the "De La Salle Institute" or the "Institute"). The Institute had a community of brothers living at St William's some of whom worked as teachers at the school alongside lay teachers. Most but not all of the alleged abusers had been members of the Institute.

4. The group claims

A number of former pupils at the school alleged that they had been sexually or physically abused by teachers or members of staff at the school. Proceedings were issued and a Group Litigation Order was made by His Honour Judge Hawkesworth QC on 5^th September 2006 in relation to approximately 170 Claimants. I am told there are now 249 Claimants. There were preliminary issues in the group action which substantially delayed the progress of the claims. On 3^rd November 2009 the issue of whether both sets of Defendants were potentially vicariously liable for the abuse allegedly committed by their employees, servants or agents was tried by His Honour Judge Hawkesworth QC. He found that only the Middlesbrough Defendants were potentially liable. The Claimants and the Middlesbrough Defendants appealed to the Court of Appeal and the appeal was dismissed in Various Claimants v Catholic Child Welfare Society [2010] EWCA Civ 1106. The Middlesbrough Defendants then appealed to the Supreme Court and on 21^st November 2012 the court granted the appeal and found that both the Middlesbrough Defendants and the De La Salle Institute could be held vicariously liable for the abusive acts of the Brothers even though the Institute was not technically responsible for the management of the school Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56.

5. The effect of this case was that the Defendants were able to agree that they would be represented by one firm of solicitors and counsel instructed by them in any subsequent trials and the court need not be concerned with the respective legal responsibilities of the various Defendants. The court and both teams of lawyers then attempted to identify suitable cases which could be tried first in order to give some guidance about the conduct of future trial. This was achieved by agreement and eight cases were chosen as lead cases to be tried in May 2015. Just before they were due to be tried it was discovered that a new police enquiry had taken place and that two of the alleged abusers James Carragher and Anthony McCallen had been charged with a large number of new offences arising from their involvement with St William's school. Understandably the Defendants applied for the trials involving these witnesses to be adjourned until the prosecution was complete as they were unlikely to give evidence with a criminal prosecution pending. They were eventually tried between October and December 2015 and both found guilty of a number of serious sexual offences against pupils at St William's. They both received substantial prison sentences. Five of the eight trials had been adjourned pending this prosecution and the individual Claimants in the other three trials discontinued just before they were due to be heard. Arrangements were then made for five lead cases to be tried of which EF's case is the third to be heard. Through no fault of his own, therefore, EF's case has been delayed by many years due to the legal complexities of this litigation.
6. The Claimant's case

I intend to give a summary of the facts which form the background to this case. Many of them are uncontroversial although the facts surrounding the alleged abuse are all disputed. The Claimant has made four witness statements in these proceedings between October 2007 and February 2015. The following summary is taken from the Claimant's evidence together with the documents that were referred to me during the trial. At the end I will give a brief summary of the evidence called by the Defendants.

7. The Claimant says that at aged 11 he started to "mess about" and refused to go to school. He became involved in petty crime such as taking bottles of milk. He thought he had been taken into care as result of his failure to attend school but his record reveals that he was taken into care for committing crimes. He first appeared before Jarrow Juvenile Court for attempted burglary in September 1971 when he would have been aged 14. He was then back before the same court for offences of theft in November 1971 when he appears to have been sentenced to a Detention Centre Order for 3 months. In May 1972 for an offence of theft he was made the subject of a care order. After approximately six weeks at Aycliffe Assessment Centre he was moved to St Peter's Approved School where he recalled he stayed for 18 months to two years. This is unlikely to be accurate as records show that he arrived at St William's on 14^th July 1972 by which time he was just 15 years old. He alleges that whilst he was at St Peter's Approved School he suffered physical abuse from at least three teachers and sexual abuse from the Headmaster Mr Burn. In his first statement he mentioned only one occasion when he was fondled sexually by Mr Burn in his bed at night, although it appeared that Mr Burn had mistaken him for another boy. In his third statement he mentioned physical abuse by two other members of staff, Mr Stokoe and his son, and also disclosed that Mr Burn had sexually abused the Claimant in his office on a number of occasions including masturbation and digital anal penetration.
8. The Claimant was allocated to St George's House and soon settled into the regime at St William's. Whilst he was a pupil at St William's he alleges that he was physically and sexually assaulted by Brother James Carragher ("Brother James"), William Bruce ("Brother Thomas" or "Plum") and Brother X (whose name has been anonymised by court order).
9. In relation to Brother James he alleges that he would come to his room in the morning (which he shared with another pupil) and on the pretence of waking him, would sexually assault him. This took the form of kissing him all over his body, touching him intimately and placing the Claimant's hand on his own penis over his clothing. He alleged that Brother James was also a violent man who would take him to his office and attempt to kiss him. If the Claimant refused his advances he would drag him round the office by his tongue. In evidence he corrected this to being dragged around the office using the inside of his cheek. He alleged that Brother James once hit him with a stick when the Claimant lost control of a tractor on the farm. At the swimming pool Brother James in common with Brother Thomas and Brother X would touch the pupils sexually whilst in the pool. In the changing area they would touch his genitals and masturbate him, sometimes when other pupils were there. In a dark room known as the Tower he was beaten by Brother James but not sexually abused by him because the entrance was obvious from the yard and not private enough for him. In his third statement made in March 2014 he alleged that the sexual abuse from Brother James extended to digital anal penetration. He also alleged that on camping trips Brothers James, Thomas and X would take every opportunity to fondle his genitals and force him to do the same to them. He also alleged he was digitally penetrated and forced to perform oral sex on Brothers James and Thomas.
10. He alleges that Brother Thomas used to give him a "dead arm" or "dead leg" by repeatedly punching the same area. He alleges that Brother Thomas and Brother X sexually assaulted him in his room and at the swimming baths. Unlike Brother James they also sexually assaulted him in the "tower" and on camping trips as mentioned in the previous paragraph. He alleges that Brother X used to take pupils to a relaxation room where there were mats and foam bats. He alleged that Brother X stripped the boys naked and rubbed oil all over the Claimant's body including his backside and penis. The lights were switched off so other boys could not see what was happening. He alleges that the physical and sexual abuse happened throughout his stay at St William's with the longest period of respite being only about two weeks.
11. The Claimant did not report the sexual abuse either at St Peter's or St William's. He said that as he had been abused by the Headmaster at St Peters there did not seem any point reporting the problem to the Headmaster at St William's. He alleges that he did report the physical abuse to a visitor named Gabrielle who said she would discuss it with the House Mother. On one occasion Gabrielle came to his room when Brother James was fondling him under the covers and he shouted at her to get out. He never saw her again and suggested that Brother James had in some way dismissed her. He never complained to his family as they were staunch Catholics and would not have believed him.
12. There are only very limited records of the time the Claimant was at St William's but he appears to have left on 7^th March 1973, he would say after suffering a broken leg playing football although he had still not reached his sixteenth birthday. In February 1973 he appeared before Leeds Crown Court for an offence of burglary which was presumably committed whilst absconding from St William's for which he received a further care order. He was then sent to Borstal in June 1974 and had his first sentence of imprisonment in 1976 again for burglary. From then until 1991 he appeared before the courts very regularly and his criminal record [C1/D/157] appears to show 17 convictions for a number of offences. He has served 18 months imprisonment for wounding on two occasions, 6 years for robbery and 2 years for burglary.
13. On 8^th September 1989 the Claimant with two friends went to the house of another friend to demand money, which the Claimant said was owed to him. During the course of an argument the Claimant took out a knife and stabbed Robert Terry, killing him. He was sentenced to a life imprisonment for murder on 5^th March 1991, a minimum term of 12 years. Due to his behaviour in prison he was not considered for parole until many years later, and was then returned for breach of licence on more than one occasion eventually being released again on licence in June 2016 having served considerably more than his tariff. He accepts that he had an anti-authoritarian attitude in prison and was also prone to attacking sex offenders who he hated. It was while he was in prison that he saw an advertisement in a magazine for prisoners called "Inside Time" about possible abuse claims arising from St William's and so he contacted the solicitors concerned and made a statement. His statement does not make clear when this was but it would have been around 2005 and he made his first statement on 8^th October 2007.
14. He has spent most of his adult life in prison which has not left much time for employment or relationships. He was in sporadic employment between 1973 and 1977 as set out in his final statement and accepts that any employment he gained was lost as a result either of alcohol abuse or his offending. When he was about 23 he started a relationship with a lady called Denise which lasted for about 13 years although he was in custody for most of it. During this time they had a daughter Kirsty who he still sees. At some point he married a different lady, Deborah, at a time when both were heavy drinkers but this marriage lasted only five days. He confessed to having had long term problems with alcohol abuse which he has only relatively recently successfully addressed and has also suffered from drug addiction (including heroin) whilst a prisoner.
15. The Claimant describes coming out of St William's as a very angry young man who was quick to get into fights and trouble. He has drunk heavily from the age of 16 until recently which he believes he did to push the thoughts of the abuse to the back of his mind. He did this successfully for many years but since he has disclosed the abuse to his lawyers his thoughts have returned to his childhood more regularly suffering intrusive thoughts particularly at night time. He has had problems with trust, forming relationships and anger management. None of his ten siblings have an extensive criminal record although he has suffered a number of bereavements over the years losing a number of them to a variety of causes. He now attends AA meetings in an effort to manage his alcoholism and is also drug free.
16. The Defendants' case

The Defendants deny that EF suffered either physical or sexual abuse whilst he was a pupil at St William's. Brother James was called as a witness and was able to recall his career at St William's, first as a teacher from January 1968 until October 1975 and then as Deputy Headmaster until he was appointed Headmaster in 1976 where he remained in post until August 1990. He conceded that he had been tried and convicted of sexual offences against pupils at St William's in 1993, 2004 and 2015. In his evidence at trial he contended that he had been wrongly convicted of a number of offences both in 2004 and 2015 which he had and still denied. He admits abusing a number of boys between 1972 and February 1980 when he ceased to act on his urges when a boy he had abused made a complaint about him. He denied abusing boys anywhere other than his domestic quarters and a house in Levisham. He had no specific memory of EF as a pupil but having read his statements denied abusing him.

17. Brother James points out that whilst EF was at St William's he was employed only as a teacher and would not be responsible for waking boys up as this would be done by the Housemaster. He denies having abused the Claimant in his office as he did not have an office until he became Deputy Headmaster in 1975 long after the Claimant left. He doubts whether the Claimant would have been sent home because he had a broken leg. He had no recollection of the visitor known as " Gabrielle" but points out that he could have done nothing to prevent her reporting any concerns to the Housemother or even the Headmaster as in 1972/3 he was employed as a teacher and had no authority to prevent someone visiting or reporting a concerning incident to anyone else.
18. Mr X (formerly Brother X) gave evidence by video link. He started as a class teacher in 1966 and at a later stage trained as a counsellor setting up "The Unit" in consultation with the then Headmaster Brother Reginald which was an intensive care unit for boys providing counselling and group therapy. He denied that he had ever either physically or sexually abused any boy at St William's. He had no recollection of EF (although he recalled the surname) whether as his teacher or as his counsellor in the Unit. He strongly denied the allegations and was able to recall how the Unit operated and comment on the Claimant's allegations from that context. He denied ever having woken the boys in the dormitories as this was not consistent with his role as teacher. He accepted that he had sometimes encouraged the boys to massage each other, sometimes using oil having removed only their shirts. He had never massaged any of the boys nor either stripped them or abused them. He pointed out that any of the boys could have complained and corroborated each other's account which is not a risk any teacher would take, even if he was an abuser. He left the Institute for personal reasons and is now married and a man of good character.
19. Brother Thomas died in 1976 and has never been asked about these allegations it seems.
20. Ms Kari Hansen, the Defendants' solicitor gave evidence about the various and significant efforts which had been made to locate and disclose relevant documents in the case and, by implication which documents were missing. She was also able to give evidence about what had become of various witnesses in the case and which witnesses, despite her efforts remained untraced.
21. The Defendants also put the Claimant to proof on his case on causation of injury (in the long term) and quantum but I do not need to go into further detail at this stage.
22. The assessment of the credibility of a witness

In many cases the assessment of the credibility of competing witnesses is crucial to the proper consideration of the evidence in the case. This is particularly true of allegations of sexual abuse which, by their nature, are unlikely to be capable of independent verification either by a witness or a recording in a document.

In his instructive article entitled The Judge as Juror: The Judicial Determination of Factual Issues, published in Current Legal Problems 38, Mr Justice Bingham (as he then was) made this observation:

"The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:

(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness's evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) the demeanour of the witness."

Mr Justice Bingham went on to conclude that the first three of the tests may be regarded in general as giving a useful pointer to where the truth lies, whereas the fourth test is more arguable. As regards the fifth, he was of the view that:

"the current tendency is … on the whole to distrust the demeanour of a witness as a reliable pointer to his honesty."

23. Further well known guidance was given by Robert Goff LJ given in The Ocean Frost [1985] 1 Lloyds Rep 1 at 57:

"Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, references to the witness' motives and to the overall probabilities can be of very great assistance to a Judge in ascertaining the truth."

Whilst this extract speaks of cases of fraud it could equally be applied to cases such as the present one where it would not be difficult to find motives why either the Claimants' or the Defendants' witnesses might choose to lie.

24. Evidence of recollection

On any view the recollection of witnesses about events which occurred many years ago is important in this case. The reliability of a witness's recollection is difficult to assess independently of an assessment of their likely truthfulness. The difficulty was identified and analysed in a recent decision of Mr Justice Leggatt in Gestmin SGPS S.A. v Credit Suisse (UK) Limited and others [2013] EWHC 3560 (Comm) where he said:

"15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

23 It is in this way that I have approached the evidence in the present case."

Mr Justice Leggatt was dealing with a commercial case in this litigation but it seems to me that the analysis is apposite to any case where witnesses are being asked to give evidence from their recollection of events many years previously.

25. There was some support for this analysis in the expert opinion called by both parties in this case. Professor Maden, a consultant psychiatrist for the Claimant opined as follows at paragraph 161 of his report:

"There are serious problems for the expert arising from the fact that the material events took place over 40 years ago. Memory is not reliable over such long periods of time. Recall is an active mental process in which memories tend to become distorted with time to fit the individual's beliefs, needs and values. Both the content and meaning of recollections often change with time. Event can and do acquire a significance years later that they did not have at the time. "

26. Ms Farrell, a clinical psychologist called by the Claimant, did not address the potential difficulties in recall in her report but did agree in the joint statement (paragraph 12) as follows:

"We agree that, even in the most honest and reliable of informants, there would probably be difficulties in recalling events accurately after so many years. We agree that the lapse of time can probably account for some of the inconsistencies observed in this case."

27. The Law on Limitation

The Defendants in this action contend that the claim is barred due to the law on limitation of actions and the Claimant seeks the court's discretion in allowing it to proceed. This is the first issue I must determine before dealing with any other issues in the case. I had considerable assistance from counsel in the case in identifying the relevant authorities and many were referred to during the trial. I do not intend to summarise every case I was referred to as this would make this judgment too lengthy but I have carefully considered all the authorities to which I was directed.

28. The relevant provisions are contained in the Limitation Act 1980 and section 11 determines the length of the limitation period in personal injury claims:

Section 11

(1) This section applies to any action for damages for negligence, nuisance or breach of duty …. where damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) …. below

(4) …. the period applicable is three years from:-

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.

29. Section 14 of the Limitation Act defines when a Claimant's date of knowledge is determined. In this case it is not necessary to consider those provisions as the Claimant accepts that his date of knowledge occurred when the assaults took place although the limitation period did not start to run until he had achieved his majority.
30. In order to avoid the effects of the provisions on limitation the Claimant has to ask the court to exercise its discretion under s 33 of the Limitation Act 1980 to order that the time limit set by section 11 of the Act shall not apply. The section reads as follows:

33 (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 [or 11A] 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] 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.

31. While these provisions in the Limitation Act are well known their application to cases of deliberate sexual abuse has been the subject of judicial interpretation over the years. In A v Hoare [2008] UKHL 6 the House of Lords provided much needed clarification of a number of issues which signalled a change in approach to the issue of limitation in cases such as the present one. Firstly, the Law Lords decided that its previous decision of Stubbings v Webb [1993] AC498 was wrongly decided. Stubbings v Webb had wrongly determined that the limitation for deliberate sexual abuse was six years (as in assault) rather than three years (as for other personal injury claims). The decision by the House of Lords in A v Hoare that the appropriate limitation period was three years meant also that a Claimant could seek the discretion of the court to disapply the limitation period under s 33 of the Act where previously that remedy had not been available. At the same time the House of Lords also determined in a linked case Young v Catholic Care (Diocese of Leeds) and the Home Office that the test of a Claimant's date of knowledge under s 14 of the Act was a wholly objective test where hitherto it had been considered to be at least partly subjective. The House of Lords also took the opportunity to give some important guidance as to the exercise of this discretion in historic child abuse cases.
32. The leading speech was given by Lord Hoffmann. He pointed out that one consequence of their lordship's decision was that evidence about the Claimant's psychological state as a consequence of his injury, and whether he could reasonably have been expected to institute proceedings would fall to be considered as part of the s 33 discretion rather than, as previously, as part of the assessment of the date of knowledge under s 14. As he explained in paragraph 49:

"In Horton v Sadler [2007] 1 AC 307 the House rejected a submission that section 33 should be confined to a "residual class of cases", as was anticipated by the 20th Report of the Law Reform Committee (Cmnd 5630) (1974) at para 56. It reaffirmed the decision of the Court of Appeal in Firman v Ellis [1978] QB 886, holding that the discretion is unfettered. The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered."

33. Lord Brown also dealt with the likely consequences of the change in approach:

"85. First, insofar as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at para 52 that is likely to bear significantly upon the possibility of having a fair trial.

86. Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations—see section 33(3) (b)) is in many cases likely to be found quite simply impossible after a long delay.

87. Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffmann at paragraph 36). It is not to be supposed that the exercise of the court's section 33 discretion will invariably replicate that position."

34. The change brought about by the decision of the House of Lords in A v Hoare was further considered by the Court of Appeal in B & Others v Nugent Care Society [2009] EWCA Civ 827 when the following warning was given at paragraph 21:

"where a judge determines the section 33 application along with the substantive issues in the case he or she should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. To do otherwise would, as the court said, be to put the cart before the horse."

35. A useful summary of the guidance in the above case was provided by Mr Justice Males in NA v Nottinghamshire County Council [2014] EWHC 4005 (QB):

"The application of this test in cases involving allegations of historic child abuse was considered by the Court of Appeal in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516, where a number of previous authorities were reviewed. In summary, and without attempting to be exhaustive, the position is as follows:

i) The burden is on the claimant to show that it would be equitable to disapply the limitation period.

ii) Where more than one claim is brought by a claimant, the discretion should be exercised separately in relation to each claim.

iii) The longer the delay, the more likely it is that the defendant will be prejudiced, but this will always depend on the issues and the nature of the evidence going to those issues. Delay is not critical in itself, but only to the extent that it has an effect on the defendant's ability to defend the claim.

iv) If a fair trial is no longer possible, that will be the end of the matter. An action cannot be allowed to proceed if that would result in an unfair trial. But if a fair trial is possible notwithstanding that there is some prejudice, the balance of injustice needs to be considered, weighing whatever prejudice the defendant has suffered in the light of all the circumstances of the case.

v) The troubled background of many claimants complaining of child abuse must be taken into account. This will include, where applicable, the fact that the lives of many such claimants deteriorate into alcohol and drug abuse and crime, often caused to some extent by their childhood experiences. The law must also recognise the inhibitions which abuse will often cause, making it difficult or impossible for claimants to describe what has happened to them, sometimes until well after they reach adulthood. Such considerations may provide a good reason for delay in commencing proceedings.

vi) Developments in the law relating to vicarious liability (and, I would add, non-delegable duties) have made it easier for a claimant to establish liability against an employer or similar defendant because, in cases where the defendant is responsible in law for the conduct of the abuser, all that the claimant needs to prove is the fact of the abuse; in such cases it is no longer necessary to prove a systemic failure on the part of the defendant; in consequence, the evidential focus in such cases is likely to be narrower than it previously was; so too, therefore, the effect of delay on the possibility of a fair trial will generally involve a narrower enquiry.

vii) Ultimately the discretion is wide and unfettered, with all relevant circumstances needing to be taken into account, including those mentioned in section 33 itself, although this list is not exhaustive."

36. The final guidance I intend to refer to is from Lady Justice Smith in Cain v Francis [2008] EWCA Civ 1451 where at paragraphs 73 and 74 she helpfully summarises what the essence of the discretion under section 33 amounts to:

"73. It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.

74. Although the delay referred to in section 33(3) is the delay after the expiry of the primary limitation period, it will always be relevant to consider when the defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence: see Gwentoys. If, as here, a defendant has had early notification of a claim and every possible opportunity to investigate and to collect evidence, some delay after the expiry of three years will have had no prejudicial effect."

37. Expert evidence on the issue of limitation

Both Professor Maden and Ms Farrell were asked to comment on the reasons for and the effect of the Claimant delaying for many years in bringing a claim. According to the joint statement (paragraphs 38-42) they were in agreement on these issues. They both agree that the delay in complaining, even for cases of sexual abuse, in this case is longer than usual at around 33 years. They agree that the most likely explanation for the delay is that the thought of complaining did not occur to him until a fellow prisoner referred to the advertisement in Inside Time. They agree that there is nothing other than his self-report to suggest that thoughts about St William's troubled him before then. They agree that whatever the reasons for the delay, it made a comprehensive assessment of the case extremely difficult (Professor Maden would say impossible) because of a deterioration in the cogency of the evidence as a result of the passage of time. They agreed that the usual problems associated with the passage of time are increased when alcoholism is involved because alcohol further impairs memory. The absence of school and social services records was alluded to together with the absence of mental health treatment records either in or out of prison until about 2007. Both experts felt that records from the Claimant's stay at HMP Grendon would have been particularly useful as this is a prison with a renowned therapeutic regime. They both agree that it would have been much easier to assess the case had it been brought within the time limits.

38. The parties' submissions on the issue of limitation

Generic

Both parties made generic submissions which applied to all five cases I heard. Leading Counsel for the Defendants pointed out that there is a tension between the court deciding on the reasons for the delay in issuing proceedings without actually making a finding of fact whether the abuse in fact occurred. The Defendants characterise the various Claimants as not being psychologically disabled from complaining of abuse but expressing the explanation that they were ashamed and embarrassed and had put the issue to the back of their mind, only for these concerns to evaporate when the chance of compensation arose. The lack of contemporaneous documentation in many cases is a serious prejudice to the Defendants it is claimed. In the case of IJ there were 15 volumes of documents, 14 of which contained various contemporaneous records. This, the Defendants say, puts into context the documentation which can be available when a claim is made more promptly albeit still outside the primary limitation period. The question is whether the absence of these documents creates a material prejudice to the Defendants, or, it was submitted, the risk of material prejudice given that the content of the missing documents cannot be known. The case of IJ showed that the House Log recorded the Claimant's welfare and demeanour at the relevant time and records of social work visits were useful in recording what the Claimant had said about whether he was happy and wished to stay at St. Williams. The Defendants submit that if the claim was brought in time they would have been in a materially better positon to defend it with the numerous documents which would then have been available. As St William's had closed in 1992 (as far as these Defendants at least were concerned) it was fanciful to expect them to have retained all relevant documents when these claims were not intimated until 2007. The court was reminded that the burden was on the Claimant to persuade the court to exercise its discretion under s 33 Limitation Act 1980.

39. Leading Counsel for the Claimant recognised that there may be missing documents but these would never assist the court in deciding whether the abuse actually took place because if it had taken place it would never be recorded. There are accurate records of when each Claimant was at St William's and when each of the alleged perpetrators worked there. It was submitted that the documentation would only be relevant to peripheral issues and would mainly be used to attack the credibility of the Claimants. This would be of limited value as all the Claimants have extensive criminal records including offences of dishonesty in any event. The appropriate test is whether it is equitable to allow the claim to proceed and there is no minimum number of documents required for a fair trial to take place.
40. It was submitted that it was not surprising that the Claimants would respond positively to a letter from a solicitor about the right to make a claim arising from abuse at St William's. Before then the shame and embarrassment of the abuse had prevented disclosure but, it was submitted, the individual Claimants would know they were not alone, the abuse would be investigated and the fact that they had been sought out meant that their convictions would not bar them from justice. The fact that victims of child sexual abuse are often too ashamed and embarrassed to discuss or report the abuse is well recognised both by psychologists and in previous legal authorities. Victims of male on male abuse, particularly where the victim is a teenage boy where there is a power imbalance with the perpetrator are particularly prone to silence. Other frequent characteristics are, inconsistent or incremental reporting, and voluntary return to the place where the abuse took place. It was submitted that false memory was unlikely to occur in Claimants where there was no suggestive intervention from dubious therapists. Even if missing documents were to show that the Claimant at the time expressed positive thoughts or the wish to stay longer at, or return to St William's that would not be probative or helpful evidence where victims of child sexual abuse often express such thoughts. It was pointed out that James Carragher admitted abusing 13 boys and there appeared to be no contemporaneous record of outward signs or symptoms leading to the suspicion that abuse had taken place.
41. Leading Counsel for the Claimant also made submissions about the context in which the abuse took place given that St William's was a home with a moral and legal duty to protect vulnerable young boys. It was submitted that the Defendants as organisations managing the home should have been aware from information in their possession in the 1970's and 1980's that children were at risk. There were at least two complaints against Brother James and one against Father McCallen which should have rung alarm bells and caused more robust investigation into the risk of abuse at the time. It was submitted that this could be considered as relevant to all the circumstances of the case in s 33 (3) Limitation Act 1980.
42. Specific to the case of EF

The Defendants complain that proceedings were not commenced until 29 years after the cause of action arose. Brother Thomas evidently died in 1976 without the Defendants being able to make any enquiries about these and similar allegations. The volunteer known as Gabrielle has never been traced but the Defendants contend that they would have had a much better prospect of finding her if the claim had been brought before the expiry of the limitation period in 1978. Whilst Brother James and Brother X were able to give evidence they were being asked about events some 43-44 years ago. In this case there are just over three volumes of documents but a number of significant documents are missing according to the Defendants: the Claimant's personal file at St William's; the personnel file for Brother Thomas; the House Logbook for 1972/3; social services records; Aycliffe Assessment Centre records; St Peter's Approved School records; the Claimant's prison records before 2007 and in particular the records from HMP Grendon.

43. It was submitted by the Claimant that the Claimant's failure to report both physical and sexual abuse at the time he was a pupil at St William's was entirely understandable given the position he was in. Thereafter he did not feel able to report the abuse due to feelings of embarrassment and shame and a wish to repress the painful memories which he partly achieved through alcohol abuse and not to discuss them. The main perpetrator Brother James was able to give evidence as was Brother X and so there was little evidential prejudice to the Defendants. There was a significant amount of documentation from the Prison Service obtained in more recent years which could be used either to support or undermine the Claimant's claim. It was alleged that the Defendants were aware of allegations against Brother James in 1993 and 2003 and should have done more to investigate the allegations.
44. Analysis of the exercise of discretion under s 33 Limitation Act 1980 in this case

I accept the burden is on the Claimant to persuade the court to exercise its discretion to disapply the limitation period. The overarching test is whether it would be equitable to allow the action to proceed and the court has an unfettered discretion and enjoined to have regard to all the circumstances of the case. The court should in particular have regard to the particular circumstances set out in section 33 (3) and it would be appropriate to consider each in turn.

45. Section 33 (3) (a) the length of, and the reasons for, the delay on the part of the plaintiff

The Claimant alleges that the abuse took place between July 1972 and March 1973 when the Claimant left St William's. The Limitation period started on 13^th June 1975 and expired on 13^th June 1978. Proceedings were issued on 17^th October 2007 which means that the delay in issuing proceedings after the limitation period expired is 29 years.

46. The reasons for the delay are essentially that the Claimant was too embarrassed and ashamed to report the abuse, for reasons which are common to many victims of child sexual abuse (see above) and that he was further deterred by his wish to put the painful experiences to the back of his mind and repress them. These reasons were asserted briefly in the Claimant's statements and repeated to the two expert witnesses. I recognise the tension referred to by Leading Counsel for the Defendant in making an assessment of the truth of these assertions without descending into a finding of fact about whether the abuse in fact occurred. It seems to me that the only way I can resolve this difficulty is by making an assumption that the abuse in fact occurred or at least that it may have occurred for the purposes only of this assessment otherwise I will fall foul of "putting the cart before the horse" as deprecated in authorities referred to above.
47. Whilst I recognise and appreciate that it is typical for a victim of child sexual abuse to want to both repress the memory and avoid disclosure of the abuse the justification for non-disclosure is not self-proving and requires some assessment of the individual alleged victim. There was very little in his witness statements to explain why he had delayed in reporting the abuse. He explained in paragraph 30 of his first witness statement that he had not complained to his family, partly because he was very ashamed of what had happened and partly because he did not think he would be believed as his parents were staunch Catholics. He claimed to have blocked out the memories through drink and that he didn't realise he could complain until he saw the advert in Inside Time. He appears to have told Ms Farrell that he was too ashamed to talk about the abuse but only mentioned to Professor Maden his concern about not being believed. When giving evidence he referred to being embarrassed giving the first statement to his solicitor who happened to be female. He used this an explanation why he was unable to disclose that the abuse had included anal digital penetration and oral sex. He could not explain however why he had been able to tell Ms Farrell about these distressing allegations in 2008 when, of course, she was also female. Although he did mention being too ashamed to talk to other boys about it, he did not speak much about shame and embarrassment as a continuing reason not to disclose the abuse in later life. He said in prison he had chosen not to mention the abuse but did not specifically say why.
48. As mentioned above Ms. Farrell and Professor Maden agreed that the most likely explain for the delay was that it simply did not occur to the Claimant to complain. This explanation, and the fairly lukewarm mention of shame and embarrassment in the evidence both in writing and orally seem to me to fall some distance short of what Lord Hoffmann described in A v Hoare:

"that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered."

49. 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 in time

I accept that the twenty-nine year delay in issuing proceedings is bound to have had some effect on the cogency of the evidence given by any of the witnesses. Regrettably, a further nine years have passed since the issue of proceedings but this further delay is in part due to the need to proceed to the Supreme Court on the vicarious liability argument and the adjournment of the trial to allow the 2015 criminal proceedings to take place. It would be wrong to blame the Claimant for this further delay. The witnesses are however being asked to remember events which occurred between 43 and 44 years ago. Brother Thomas died in 1976 so his evidence may well have been lost even if the claim was brought in time. It is possible that the witness Gabrielle to whom the Claimant complained may have been easier to trace in 1978 than now when it is entirely understandable that she cannot be found.

50. In terms of cogency the Claimant accepted early in his evidence that his memory was not good, having been affected by both alcohol abuse and heroin addiction- "some of it is like looking through a fog" he said. He had to accept that he had been wrong both about when he first went to St William's (he thought aged 12) and how long he had stayed there (he thought 18 months). He knew his father had died whilst he was in custody but it was never satisfactorily established in evidence when this had occurred or where he was at the time. There were a number of other inconsistencies in his evidence which I will deal with in more detail later. So far as cogency is concerned he gave his evidence as best he could, and was not an obviously unreliable witness, but matters of detail, in particular dates often eluded him understandably. The Defendant's witnesses did their best to recall events from so long ago but as neither had any specific recollection of this particular Claimant they were limited to looking at the Claimant's allegations from his witness statements and explaining why the particular circumstances are unlikely to have occurred.
51. There is no doubt that the absence of some of the records is potentially prejudicial to the Defendants and that it has made the task of the experts reporting on causation particularly difficult. There are virtually no records from St William's other than those proving when the Claimant and the alleged perpetrators were present. The absence of social services records and the House Log Book is particularly unfortunate. The records from Aycliffe, St Peters and HMP Grendon would have been particularly useful to the experts in making an assessment of what effect if any the alleged abuse had on the Claimant. It is not surprising that in the joint statement the experts agreed (in paragraph five):

"that, given the paucity of records and the length of time that has passed, it would be a respectable and defensible professional stance for any expert to say that it is simply impossible to reach conclusions about the Claimant's early mental health problems because there are too many uncertainties"

52. 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

This particular provision is normally concerned with how a defendant responds to a claim being made, for example if disclosure is delayed or obstacles placed in the claimant's path. No such allegations are made in this case but the Claimant has contended that the Defendants should have investigated the allegations of abuse more thoroughly when they became aware that Brother James was being investigated between 2001 and 2003. I am not convinced this is a fair criticism. It seems to me that the Defendants would be justified in leaving the investigation to the police, if only to ensure they did not interfere with the police enquiry. By this time the home had been closed for 10 years and there was no immediate need for an investigation into historic allegations when they were aware the police were already carrying out such an investigation.

53. The duration of any disability of the plaintiff arising after the date of the accrual of the cause of action

Here the disability ended on the Claimant's 18^th birthday namely on 13^th June 1975 approximately two and a quarter years after the last allegation of abuse.

54. The extent to which the Claimant 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

On the Claimant's case he was unable to consider taking action about the abuse until he learnt others were also making a claim in 2005. I have to bear in mind however that he would have known even at aged 18 that what had happened to him was wrong. He appears to have given his first statement to solicitors in October 2007 and started proceedings shortly thereafter. The intervening period is unexplained but in the context of the overall delay not significant.

55. 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

I accept that the Claimant knew enough about his cause of action on attaining his majority but on his case was disabled from pursuing his claim due to the psychological effects of the abuse. He first took legal advice in 2005. There is no evidence that he took advice from either lawyers or health professionals at any time in the intervening period although he would say it was because he was too embarrassed to do so. He certainly had the opportunity to do so when he was asked for mitigation about his sentences or he was being assessed for parole or re-categorisation in prison.

56. All the circumstances of the case

I will deal here briefly with the novel submission put forward by Leading Counsel for the Claimant that the high level of moral culpability on the part of the perpetrators and Defendants should inure for the benefit of the Claimant in the balancing exercise. Whilst there is no doubt that the perpetrators were morally culpable and that the Defendants could reasonably be criticised for the way they investigated the allegations of abuse which preceded the police prosecutions I am not convinced they should weigh significantly in the Claimant's favour. If they did it would be difficult to see how a Defendant could ever succeed on the section 33 issue when attempting to defend an allegation of child sexual abuse. There would always be a high level of moral culpability attached to the allegations. The system of compensation for the commission of a tort in this country does not involve an assessment of moral culpability. The breach of duty may be accidental (in a strict liability case), negligent, reckless or intentional. The compensation is assessed on the same basis (other than in cases of aggravated or exemplary damages).

57. In previous decisions under section 33 the court does not normally pay particular attention to the strength or weakness of the claim (unless it is very weak) and so it is hard to see why the court should take into account how morally culpable a defendant is when deciding whether to excuse a claimant for not issuing proceedings within the limitation period. As Parker LJ showed in Hartley v. Birmingham City District Council [1992] 1 WLR 968, CA, at 979G-H, such a finding is usually neutral on the balance of prejudice:

"… in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff's case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied … as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend."

58. Decision on the exercise of discretion under section 33

I have considered all the circumstances of the case including the particular circumstances set out in section 33 (3) as adumbrated above. The delay between the expiry of the limitation period and the issue of proceedings in this case is long by any standards. The cogency of the evidence of both parties is likely to suffer as a consequence of the passage of such a substantial period of time alone. On the particular facts of this case however, there are further concerns about the cogency of the evidence in terms of the Claimant's vagueness on details and the fact that two of the three alleged perpetrators who have given evidence have no actual memory of the Claimant. The documentation in this case is virtually all post 2000 and there is little or no contemporaneous documentation. This is a loss which I accept particularly affects the Defendants who are seeking to challenge the Claimant's uncorroborated recollection. The experts have both agreed that the paucity of documentation makes their assessment of causation very difficult if not verging on impossible. Whilst an explanation has been provided by the Claimant for the delay in disclosing the abuse and issuing these proceedings it has not been made with any real force. The experts were agreed that the most likely explanation for the delay was that it had not occurred to the Claimant to make a claim. If this were the only reason it would be unlikely to weigh heavily in the scale. The other factors set out above appear to be either neutral or at least not beneficial to the Claimant.

59. This is not a case where the Claimant has put forward a powerful argument justifying his delay in disclosing the abuse and issuing proceedings. Whilst I accept that victims of sexual abuse can often put forward such an argument this particular Claimant has not done so with any real conviction, either in his written evidence or in the witness box. It is a case where the Defendants can, with good reason, point to missing documentation which would have been highly material and could have assisted them in their defence of, or investigation of the claim. I have reached the conclusion that it would be unfair to expect the Defendants to meet this claim at trial after such a long period of time. The lack of contemporaneous documents, in my view, coupled with the length of the delay, means that a fair trial is no longer possible. In my judgment, it would not be equitable to allow this claim to proceed and accordingly I intend to dismiss it. In case of a successful appeal however I will go on to consider the next logical issue.
60. Was the Claimant in fact abused as he alleges?

. Having assessed the Defendants' witness I cannot find that abuse could not have occurred. Whilst Brother James Carragher (as he then was) was superficially convincing I did not accept his evidence that he had only ever abused four boys. I am aware that in 2004 and 2015 he was disbelieved on his oath by a jury who were deciding the case to a criminal standard of proof and they found that he had in fact abused further boys named in the indictments that resulted in guilty verdicts. I believe the total number of victims for which he has been convicted is thirteen. Some of the allegations were after the date he said he stopped offending in 1980 and some of them were in places other than the two places he admitted (his living accommodation and Levisham). I must accept that there is every possibility that the actual number of victims is more than thirteen and could theoretically include the Claimant.

61. Brother X (as he then was) gave evidence over a video-link so it was more difficult to judge his demeanour than if he had been in court. Having said that the impression I gained was of a life-long educator who was proud of his work and who bitterly resented being accused of offences which he found both embarrassing and distasteful. He was the subject of robust but fair cross-examination and dealt with the questions sensibly and fairly in the main. Whilst some of his ideas ( for example boys massaging other boys with oil ) may seem curious now I have to bear in mind that the 1970's were a different age where more innocent interpretations were generally put on the treatment of children. Similarly, the fact that he slept in a different room in The Unit from one of the pupils under "lock-down" I do not regard as suspicious by the standard of the age even though it could probably not happen now in a well-run organisation. He made a very good point that it is highly unlikely that any abuser would choose to abuse a boy whilst others were in the vicinity. If the victim complained his account could be corroborated by the others resulting in an investigation and the risk of dismissal or prosecution. Another potentially important point was that the boys were given the opportunity to choose massage or another relaxing pursuit at the end of the day and according to Brother X it was not his choice but an option given to the boys as one of several to choose from.
62. I could not form a view about Brother Thomas as he had died long before this claim was contemplated. I can only record that he does not appear to have been prosecuted or convicted of any offence before his death.
63. The Claimant as a witness was straightforward. I would not say that he was obviously untruthful from what he said or his demeanour. He answered the questions which were put to him, including about a number of inconsistencies in his evidence over time, which he was not always able to satisfactorily explain. He was not however evasive or incredible. This could of course be because he was truthful and reliable, because he believed he was truthful although he was not reliable, or because he was untruthful and I was unable to discern this from his manner or what he said. The Defendants would of course suggest the latter explanation is most likely and rely on the Claimant's extensive criminal record, including many offences of dishonesty. I however accept that a person with a record of dishonesty can still give truthful evidence.
64. Deciding a case purely on the impression the witnesses make on the court is often unwise and it is necessary to look at the contemporaneous documents to see if they cast doubt on the veracity of the Claimant's allegations. Although there are few genuinely contemporaneous documents it is necessary to examine what documents there are and look critically at what the Claimant has said to various people over time.
65. There a number of reasons why the Defendants say that the Claimant is likely to be an unreliable witness in addition to his convictions for dishonesty. Professor Maden and Ms Farrell both agree that the Claimant suffers from a severe dissocial personality disorder which is common amongst prisoners and other offenders. Whilst they disagree about whether the Claimant has shown any real remorse for killing his former friend they appear to agree about his current diagnosis. The fact that the Claimant on his own admission had an addiction to alcohol from around the age of 16 until relatively recently is also thought to be relevant to his reliability as a witness as would be his issues with heroin.
66. Both Professor Maden and Ms Farrell agree at paragraph 12 of the joint statement [C1/C/151] that there is an odd finding by a prison psychologist Stephanie Rooney who carried out a HCR-20 risk assessment on 26^th June 2008 [C2/D5/552]. She found at paragraph 5.2 "Whilst there is no significant evidence of early maladjustment and EF describes his childhood positively he does state his parents struggled economically". The experts both agreed the HCR-20 assessment under "early maladjustment" would require the psychologist to specifically ask questions about childhood sexual abuse. The significance of this is that the assessment took place on 26^th June 2008 and Mrs Farrell examined the Claimant on 28^th July 2008 when he made full disclosure of the sexual abuse allegations. Both the experts thought it was odd that the Claimant did not disclose the allegations of sexual abuse to Ms Rooney when he had already disclosed some of them to his solicitors and disclosed more fully to Ms Farrell only a month later.
67. The Claimant made a further denial of child abuse during an OASys risk assessment carried out on 21^st November 2009 when he was specifically asked about the approved schools he had been to. Again this was after his first two witness statements and after his assessment by Ms Farrell. The Claimant says that the OASys risk assessments are mainly compiled from a trawl through records so this denial may not have as much force as the Defendants would wish. It does seem odd that the Claimant chose not to mention the abuse to anyone, even after 2007 when he had clearly disclosed the gist of the abuse to his solicitors. He accepted that he could have mentioned it to his lawyers in the hope of getting a lighter sentence or an earlier parole date but he chose not to, "no-one would" he felt. It would appear the Claimant was seeing a counsellor in November 2009 and this continued for a further 12 weeks [C1/D5/389] yet it would appear that no disclosures were made about the abuse he suffered either at St Peter's or St William's. Whilst I can understand his reluctance to discuss the abuse before he had disclosed it to anyone, it is more difficult to understand once he had disclosed it to his solicitors and Ms Farrell.
68. The way the evidence emerged in the Claimant's witness statements was unusual. The first statement deals extensively with the abuse at St Peter's but the allegations about St William's are a little vague. He alleges he was fondled by two unnamed Brothers in his bedroom in the morning. He alleged that "members of staff" would touch him "in a sexual nature" in the swimming pool. He also alleged that Brother James touched him intimately both in his room in the morning and in the "Tower" a dark room where pupils were sent as a form of punishment. He was physically abused by Brother James in his office and on the farm. The allegations against Brother Thomas were of physical abuse only and against Brother X of massage and fondling. In the second statement the allegations at the swimming pool were clarified to allegations against Brothers James, Thomas and X and included masturbation and sexual assaults out of the pool. Rather oddly, he denied having been sexually abused by Brother James in the Tower although he was beaten there. The allegation of abuse in Brother James's office appears to have disappeared.
69. In his third statement the Claimant made allegations of abuse on camping trips by each of the Brothers for the first time. The abuse also extended to digital penetration not only on the camping trips but also at the swimming pool and in the dormitories. Whilst I can understand why a victim of sexual abuse might make disclosure in stages leaving the most serious allegations to the end, this does not explain the inconsistencies in the statements, for example the failure to identify the abusers in the swimming pool and dormitory in the first statement and the conflict between the first and second statement about whether Brother James sexually abused the Claimant in the Tower. It also does not explain why the allegations about camping trips against all three alleged perpetrators did not emerge until 2014. The accuracy of the statements generally was placed in sharp relief when it emerged that in paragraph 44 of his first statement he had described the victim of the murder as "Gail Cused" when it was actually Robert Terry. He was unable to explain how this mistake had been made or why no-one appeared to have noticed it.
70. I also have a concern that some of the allegations which the Claimant makes are inherently implausible. In paragraph 21 of his first statement the Claimant describes being fondled by two unnamed Brothers in the dormitory he shared with another boy. He also alleged that Brother James had done this. It seems to me inherently unlikely that Brother James in particular would abuse a boy whilst another boy was present in the room. It was clear from his evidence that Brother James is an intelligent man. In his evidence Brother X said of Brother James "He is a devious individual. Abusers are controlling, manipulative and secretive." Brother James in evidence admitted that he had been very cautious and was afraid of exposure when carrying out the abuse he admitted. The evidence of Mr M was instructive in this respect. His evidence is worthwhile because Brother James has admitted abusing Mr M. Other than one example on a camping trip all the abuse of Mr M by Brother James happened in private. This is consistent with the evidence which Brother James gave. The thought of two Brothers simultaneously abusing the Claimant in this fashion is even more unlikely.
71. The same argument applies to the allegation of abuse by Brother X in the Unit. It is alleged that up to five or six boys might be in the room stripped naked, when Brother X pulled the curtains so it was dark and abused the Claimant and I assume other boys. I accept the argument put forward by Brother X that an abuser could not take the risk that a boy might complain and then his complaint would be corroborated by other boys who were present. This also applies to the allegation of abuse in tents on camping trips. There would be at least three other boys in the tent I assume which would make the type of serious abuse alleged impracticable and fraught with danger of discovery for the alleged abuser. Similarly the allegations that boys were masturbated in the changing area after swimming seems unlikely. The Claimant's evidence that the abusers were crafty and did it under a towel does not ring true.
72. The whole history of the allegations against Brother James is fraught with problems. Firstly it is alleged that the Claimant was abused both sexually and physically in Brother James' office at a time when he did not have an office. When the Claimant saw Ms Farrell he told her that Brother James did not sexually abuse him although " he knew what was happening" [C1/C/92]. He had alleged in his first statement that he was sexually abused by Brother James in the Tower but in his second statement he alleged only physical abuse and denied any sexual abuse in the Tower. In his evidence he was asked about this inconsistency and he said the entrance to the Tower was clearly visible from the yard and other boys would be able to see him enter and leave "so it wasn't quite private enough for him". It is difficult to make sense of this reasoning as his evidence is that Brother James came into the Tower to physically abuse him in any event, with the entrance I assume in full view of other boys. The allegations that Brother James abused him in front of other boys at the swimming pool, in the dormitory or on camping trips do not sit well with this explanation.
73. Although I accept that there is a risk that the Claimant was physically and/ or sexually abused whilst he was a pupil at St William's because of the presence of known perpetrators there I cannot find on the balance of probability that he was. Whilst he was not openly an unconvincing witness his evidence to the court generally is vague and inconsistent. There are significant inconsistencies in what the Claimant has said to the court and others at various times. Many of the allegations are inherently implausible and he never really adequately explained why he chose not to reveal the abuse at any stage in his prison career, even after he had made his first disclosures when he accepted in evidence that he might have been able to use the history to his advantage. He has failed to discharge the burden of proof on him of satisfying me that the abuse occurred on the balance of probability. I accept there may be differing explanations for why he would give this evidence but I do not need to make a specific finding as to his motivation when I do not need to do so to resolve the case.
74. It follows that even if I had allowed the claim to proceed despite the expiry of the limitation period I would have dismissed it on the issue of whether the court was satisfied that the abuse took place. In the light of this finding it is not necessary for me to deal with the issues of causation and quantum.
75. I am grateful for the assistance of Leading and Junior counsel