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Limitation in abuse claims: further guidance
Peter Murray v Father Martin Devenish (as a representative of the Sons of the Sacred Heart of Jesus)  EWHC 1895 (QB)
Keoghs has defended a claim at trial involving alleged historical abuse by a now deceased former teacher at a Roman Catholic seminary in the 1970s. The High Court has now handed down its judgment in the case, in which it refused to exercise its discretion to allow the claim to proceed.
Ian Carroll, Legal Director in the abuse team at Keoghs, who acted on behalf of the defendant in the case, considers the decision and its potential impact in other similar claims.
The claimant alleged that he was the victim of sexual abuse by a former teacher of a Roman Catholic seminary, Michael Riddle, between 1973 and 1974.
In March 2013 the claimant commenced a civil claim for compensation alleging that the defendant (whose organisation was uninsured and sued only in a representative capacity against whom no personal fault or culpability was alleged) was both negligent and vicariously liable for the assaults. Whilst the claim in negligence was denied, it was accepted by the defendant that it would be vicariously liable for any assaults the claimant proved to have been committed.
However, Riddle had died in 1999. Further, apart from the claimant and his close relative (who only made a complaint of sexual abuse by Riddle after the claimant had already instructed solicitors), there had been no record of any complaints against him, either before or since his death. Accordingly, it was argued that Riddle’s death and the length of the claimant’s delay had rendered the defendant unable to carry out a meaningful investigation so that a fair trial was no longer possible. A limitation defence was raised on the basis that the claim was statute barred and the court should not exercise its unfettered discretion to allow the claim to proceed.
In May 2014 (following the commencement of proceedings) the claimant published his autobiography, which included his accounts of alleged abuse by Riddle. The claimant wrote this book with the assistance of 45 personal diaries and thousands of letters and other works he had retained from childhood. However, with the exception of five diaries, the claimant proceeded to destroy all his diaries and the majority of the letters he used to write his book. Accordingly, the defendant also made an application to strike out the claimant’s claim to be heard at trial on the basis that the deliberate destruction of documents after the commencement of proceedings was an abuse of process.
The trial took place before Mr Justice Nicol in June 2018 in the High Court in London.
At trial, the claimant abandoned his claim in negligence and the claim proceeded only in vicarious liability. However, dismissing the claimant’s claim, the judge considered that Riddle’s death, the lengthy delay on the part of the claimant and the unavailability of documents (including those deliberately destroyed) had seriously prejudiced the prospects of a fair trial and he did not consider it equitable to exercise his discretion to allow the claim to proceed.
The alleged abuser’s death
The claimant asserted at trial that Riddle’s death caused no prejudice to the defendant, as if he was alive, he was unlikely to have admitted the alleged assaults (and thereby incriminate himself). The claimant asserted that Riddle would have simply denied the alleged assaults, but such denials would have carried little weight (given that the claimant relied on two witnesses at trial who also alleged that they had been sexually abused by Riddle). The judge agreed that the claimant gave a credible account of the alleged abuse and was supported by credible witnesses who alleged abuse of a similar nature.
However, the judge considered that the defendant had still been “undeniably disadvantaged” by Riddle’s death. In particular, the defendant was unable to take instructions from Riddle and was inhibited in the cross-examination of the claimant (and his witnesses) on the accounts of abuse. Indeed, it would have been professionally improper for the defendant to suggest the claimant was not telling the truth about his allegations of abuse, as it had no basis to do so. Further, in circumstances where there were only two people present when the alleged abuse occurred, the judge was not persuaded by an argument that Riddle’s denial (if he were alive) would have carried little weight. In this respect the judge referred to John v Rees  in which Vice-Chancellor Megarry said “the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.” Therefore, the judge considered that Riddle’s death alone discharged the defendant’s evidence burden and that it was significantly prejudiced by Riddle’s death.
Claimant’s delay and destruction of documents
The claimant’s delay following the expiry of the limitation period was 34 years. This was not a case in which the claimant did not appreciate that the abuse was wrong, or that shame or embarrassment inhibited his disclosure of abuse. The claimant’s central explanation for his delay was he did not want to take any action whilst his mother was alive. His mother died in 2011. Whilst the judge accepted the claimant may have felt some concern about his mother’s reaction, contrary to what the claimant said in both his book and in his witness evidence, the evidence showed that the claimant did in fact begin to initiate a dialogue with the defendant about his alleged abuse in 2010, over a year before his mother’s death. Taking this into account, the judge was not persuaded that the claimant’s reasons for his delay significantly “qualified or tempered” the prejudice caused to the defendant.
The effect of this delay meant there were many documents unavailable which would have assisted the defendant on issues of liability, causation and quantum. The absence of these documents meant that even greater emphasis was placed upon the reliability and accuracy of witnesses’ memories. In this respect, the judge noted that even the claimant, whose book boasted of him having a “remarkable memory”, proved to be fallible when giving evidence. Finally, whilst the judge did not consider the claimant intentionally destroyed documents which would have harmed his case or assisted the defendant, the deliberate destruction of potentially relevant documents had a prejudicial effect on the case and was relevant to his decision on limitation.
Limitation periods exist to protect defendants from stale claims, and delay is almost always damaging to the prospects of a fair trial. The fact that some sort of trial is possible is no answer. The delay in this case resulted in the unavailability of key evidence, most notably the evidence of the alleged abuser, which was a particularly important factor and damaged the prospects of a fair trial. This is even where the court considered that it had heard credible evidence from other witnesses that they too had been assaulted by the same individual. This judgment represents further evidence that the Courts continue to take the assessment of prejudice from delay, and the consequent effect of that delay on the interests of justice to all parties, extremely seriously.
Organisations should continue to consider all relevant factors, particularly any potential prejudice arising from delay, when considering a limitation defence, and defendants should not feel constrained or inhibited by raising this defence where it is appropriate to do so.