EXE v The Governors of the Royal Naval School  EWHC 595 QB
News And Events25/03/2020
The High Court (Mr Justice Griffiths) has recently handed down judgment in this non-recent sexual abuse claim, finding for the defendant on all issues including limitation, vicarious liability, negligence and consent.
Keoghs Associate, Christopher Wilson, and assistant Hannah Kirkman, who acted on behalf of the defendants and their insurers, consider the decision and its potential implications.
The defendants were the governors of an independent secondary school (‘the School’) for girls. The claimant attended the School as a day pupil from the age of 12 in September 1989. One year later, on 15 October 1990, the alleged abuser Raymond Hughes (“Hughes”) was given a job at the School as a resident kitchen porter. Unbeknown to the School, Hughes had a criminal record including two counts of unlawful sexual intercourse with a girl aged 15. He remained an employee until 10 July 1991.
Hughes and the claimant developed a relationship which continued after Hughes had left the School. The material evidence included the following facts:
- The claimant and her friend took to sitting on a staircase during their lunch break that was out of bounds to students but used by the kitchen porters, Hughes included, to access the freezer rooms and storage rooms beneath the kitchen.
- The claimant and her friend met Hughes as he passed them on this staircase and they began to speak with him regularly.
- The claimant says that on 16 May 1991, sometime after their first meeting and when she was alone on the staircase, Hughes told her that he liked her and she confirmed that she liked him too. The claimant had already confided in her friend that she had feelings for Hughes.
- The next day, there was a fire at the School and the staircase where they had met was blocked off. The claimant did not see Hughes again until after half-term which began on 24 May 1991. However, she did manage to telephone Hughes at the School during the half-term holidays, arranging to meet him on the School’s premises and then near the claimant’s home. On this second occasion Hughes and the claimant kissed and cuddled.
- On 6 June 1991 the claimant stayed after hours on the pretence of attending Duke of Edinburgh Award training. She went to Hughes’ bedroom (he had a flat on the School premises) and they had sexual intercourse for the first time. The claimant then visited every Thursday evening for the next five weeks. They had sexual intercourse on each occasion.
- On 10 June, Hughes was warned by the School about over-familiarity with other girls (not the claimant) and questioned about drugs. On 6 July Hughes was arrested for drug offences. The claimant telephoned Hughes, who suggested he could fly to Spain where the claimant was spending a summer holiday with her family. On 8 July cannabis was found in Hughes’ room and he resigned. Hughes then flew to Spain where the claimant contrived to separate herself from her family, meet Hughes and have sexual intercourse with him;
- On her 15th birthday, 5 August 1991, the claimant received a letter from Hughes. He was sleeping rough near where she lived. Over the next four days they met and had sexual intercourse. Hughes then went away but when he returned on 21 August they resumed their daily clandestine activity;
- On 24 August the claimant ran away from home. By prior arrangement she met Hughes and they hitchhiked to Rotherham, where they immediately rented a flat and, it was alleged, Hughes violently raped her. Hughes left the flat shortly after this to return to Surrey and answer bail in respect of the drug offences. He was arrested and did not return to the flat. On 28 August the claimant was found by the police and picked up by her father.
- Hughes was charged with criminal offences arising out of his conduct with the claimant. He pleaded guilty to three counts of unlawful sexual intercourse with a girl under 16.
The issues before the Court were as follows:
- Limitation – Should the Court exercise its discretion under section 33 Limitation Act 1980 to disapply the limitation period in favour of the claimant?
- Consent – Although Hughes had committed crimes, had he committed actionable torts or had the claimant in fact consented to what happened between them?
- Vicarious liability – If Hughes had committed actionable torts, was the School vicariously liable for those torts?
- Negligence – in the alternative, was the School negligent according to the standards of the day, for failing to carry out sufficient checks that may have identified Hughes’ criminal record?
Index events occurred in 1991 and the primary limitation period expired in 1997. The claim was statute-barred. When determining whether the primary limitation period should be extended under section 33, the Judge considered the length and the reasons for the delay on the part of the claimant, and the extent to which, having regard to the delay, the evidence adduced was or was likely to be less cogent than if the action had been brought within the primary limitation period.
- The reason for the delay
The psychiatric experts agreed that the claimant had never lacked the mental capacity to complain or to instruct her legal representative, nor had she ever been psychiatrically disabled from complaining or from initiating a claim. The claimant had disclosed the alleged abuse in 1991 to her family, the school and the police. Although the Judge acknowledged the reasons for delay which were a reluctance to hurt her family, her mother’s death, anxiety and alleged problems with self-harming and alcohol, the Judge did not accept that there was sufficient evidence of self-harming and alcohol issues nor that the reasons put forward were sufficient to justify the delay in initiating proceedings.
1. The extent to which, having regard to the delay, the evidence adduced was less cogent than if action had been brought within the time allowed
The Judge found that due to the passage of time the claimant’s evidence was not cogent: in fact, he was of the view that she was not a credible witness. On two important points where it was possible to cross-refer her evidence, he found that ‘her evidence was not only incomplete and inaccurate, but wrong in substance to the extent that it was misleading’. This lack of cogency made it difficult to decipher the issue of consent in particular, where there were inconsistencies between what the claimant said at the time in her police witness statement (that she did consent) and what she told the Court (that she did not consent). The Judge also placed great emphasis on how assessment of the issue of negligence had been negatively affected by the passage of time as those responsible for the recruitment of Hughes (who were now no longer available) would have made important witnesses in relation to what standards were to be expected in 1991, and whether the School fell below them.
The Judge was not satisfied that a fair trial could be possible and ‘in view, particularly, of the lack of cogency in EXE’s evidence, and the deterioration in the availability and cogency of evidence generally’ it was not equitable to extend the limitation period.
Consent is a complete legal defence to the tort of trespass. The Judge had to consider whether the claimant genuinely consented to the actions of Hughes. It was the claimant’s retrospective assertion that she did not provide free consent as she had been groomed, referencing “passive coercion”, “brainwashing” and “manipulation” in her evidence.
The Judge placed great emphasis on what he regarded as the greater reliability of the claimant’s police witness statement, which had been given shortly after the index events and strongly indicated that she did indeed consent. On the first occasion of sexual intercourse the claimant told the police that she had spoken to Hughes about her being 14 years old and what her parents would say if they found out and she still wanted to have sex with him. The claimant also told the police that she was in full agreement to these actions and it was what she wanted. Indeed, on one occasion she asked Hughes to stop and he complied with this request. Taking this into account the Judge found that “what followed was fully considered, fully consensual, and welcomed by EXE, who was not groomed into it.” Furthermore, Hughes had no authority over the claimant. He was a kitchen porter, not a teacher, and thereafter homeless and unemployed. This was a case whereby the claimant had come to regret the decisions she had made and, in retrospect, had come to believe that she did not really consent at the time.
It is important to note that the Judge highlighted the difference between a crime and a tort; he emphasised that his findings in respect of this issue did not in any way contradict the fact that Hughes was a criminal or that EXE was his victim. However, on the evidence, the Judge found that the claimant was “a willing participant and protagonist”, that she did consent to all sexual activity, that Hughes’ actions did not constitute grooming and that there was no actionable tort.
Even if there had been an actionable tort, the Judge went on to find that the School would not have been vicariously liable for it. On the facts there was no sufficient connection between Hughes’ job as a kitchen porter and his wrongful conduct for vicarious liability to attach. Although he did cross paths with the claimant at the School within working hours, his duties did not involve him having any contact whatsoever with the pupils. He did not have any power or influence over them. He did not use his position or employment at the School to engage with the claimant. Any connection was even more remote after Hughes resigned.
The Judge noted that the standards in 1990 were very different - checks had to be carried out only on certain prospective employees such as teachers, rather than all staff. Guidance stated that employees such as dinner assistants, bus drivers and cleaners were not positions subject to criminal background checks. Although kitchen porters were not specifically mentioned, the guidance set out that only those who had “substantial opportunity for access to children” should be checked. The School had not acted negligently in failing to conduct a criminal record check in respect of Hughes.
This case highlights the prejudice to a fair trial of a non-recent claim when there is a lack of cogent evidence and potentially important witness evidence. Further, claimants do need to provide a justifiable explanation in order to have the benefit of section 33 discretion. It is not merely sufficient for a claimant to say that they were prevented from bringing a claim due to feelings of shame and guilt when there have been one or more previous disclosures.
It is also interesting to see the court hold that in appropriate factual circumstances consent is a viable defence. This is the second time in recent months where we have seen the courts make such a finding (see also Daniel Tyler’s article on the case of XXX v YYY). It must be borne in mind, however, that in this case there was a contemporaneous and unequivocal police statement which assisted the Court in deciding the issue. Whilst this judgment is a further reminder that the issue of consent needs to be considered on the subjective facts of each individual case, great caution should still be exercised when assessing whether, on the evidence, there is true consent.
Finally, bearing in mind how the scope of vicarious liability has been widened in recent years this judgment comes as a welcome reminder that an organisation is not vicariously liable simply because it employed an individual. It is important in every case to consider the scope of an employee’s field of activities. Merely having the opportunity to commit a tort is not of itself sufficient to fix the employer with vicarious liability. However wide the doctrine of vicarious liability might be, it does have limits.
For further information, please contact Chris Wilson.