Keoghs Insight

Author

Lauranne Nolan

FXF v Ampleforth Abbey Trustees [2020] EWHC 791 (QB)

News And Events02/04/2020

Keoghs has defended a claim at trial in the High Court involving alleged abuse by a now deceased priest and member of the Benedictine community of Ampleforth Abbey, Fr Damian Webb.

Background

The claimant alleged that she was a victim of sexual abuse by Fr Webb in approximately 1968/1969 when she was around five or six years old. Fr Webb was the assistant parish priest at the claimant’s local parish where she would attend with her family.

In July 2016 the claimant commenced a civil claim for compensation alleging that the defendants were both negligent and vicariously liable for the alleged assaults. Proceedings were then issued in September 2017. The claim in negligence was denied but the defendants accepted that they would be vicariously liable for any assaults the claimant proved to have been committed by Fr Webb.

Fr Webb was now deceased, having died in July 1990. Whilst there had been several other complaints of abuse since his death, these complaints were first raised in 2013 and there had been no record of any complaints being made prior to Fr Webb’s death. This was also particularly relevant as the claimant alleged that her mother had reported Fr Webb to “the Church” in 1969 following the final incident of abuse and that, as a result of this complaint, Fr Webb was moved to a different parish.

A limitation defence was therefore also raised by the defendants on the basis that the claim was statute barred and that the court should not exercise its discretion to allow the claim to proceed, primarily on the basis that they had been exposed to the real possibility of significant prejudice as a consequence of Fr Webb’s death many years earlier.

The trial took place before Mrs Justice Lambert in January 2020 in the High Court in London.

Judgment

At trial, the claim in negligence was abandoned and proceeded in vicarious liability only. Dismissing the claimant’s claim, the judge considered that Fr Webb’s death had seriously prejudiced the prospects of a fair trial and she did not consider it equitable to exercise her discretion to allow the claim to proceed.

The alleged abuser’s death

The claimant submitted at trial that Fr Webb’s death caused no prejudice to the defendants as even if he was alive, the claimant was a reliable and straightforward witness meaning that it would have been unlikely that Fr Webb’s evidence would have ever prevailed over the claimant’s.  Further, the claimant contended that the defendants were always going to experience great difficulties in persuading the Court that the claimant’s allegations were not true.

However, in the absence of instructions or other evidence contradicting the claimant’s account, the judge acknowledged that the defendants were limited professionally in the extent to which they were able to challenge the claimant’s account of the alleged abuse. It would have been wholly improper and wrong to suggest that the claimant was lying or not giving an honest account of her belief about what happened, meaning the defendants’ investigations could only be directed to the reliability of the claimant’s evidence overall, and the extent to which the defendants had been disadvantaged as a result of the delay in bringing the action.

The judge agreed that on the basis of the necessarily one-sided evidence which she heard, the claimant’s account of the alleged abuse did appear to be genuine and based on the claimant’s honest belief as to what had happened, but caveated that with saying that an honest belief can still be a mistaken belief. Further, the judge accepted the defendants’ submission that, had Fr Webb still been alive he would certainly have had a case to answer, but it would not have been an unanswerable case.

In this respect, the judge found the claimant’s account to be obviously deficient with large gaps in her recall and other aspects which led the judge to question her general reliability as a historian. This therefore underscored the value of the claimant having corroborative evidence.  In this respect, the claimant relied on several witnesses to corroborate her account of Fr Webb’s alleged pattern of abuse, including others who were alleged victims of Fr Webb and documentary evidence of other similar complaints recorded against Fr Webb since 2013.  However, whilst these accounts lent support to the claimant’s account, the judge considered the evidence from the witnesses was not impressive and she could only place limited weight upon what they were now able to say many years later and upon the contents of recorded complaints.

In summary, the death of Fr Webb had caused very substantial prejudice to the defendant which meant that it was in no position to advance a positive case in respect of the claimant’s allegations.

Claimant’s delay

The claimant’s delay in issuing proceedings in 2017 following the expiry of the limitation period was 32 years.  She first consulted solicitors in March 2013 to pursue a potential civil claim, but decided not to pursue the litigation at that stage due to the potential financial commitment under the terms of the solicitor’s engagement. On the first morning of the trial, the defendants were also informed that the claimant had in fact sought legal advice from another firm of solicitors within a year of consulting her first solicitors.

The claimant then reported her allegations directly to the defendants in July 2014.  The claimant had initially contacted the National Catholic Safeguarding Commission (NCSC) who had in turn passed the complaint to the safeguarding coordinator at Ampleforth Abbey at the time who reported matters to the police. In May 2016 the claimant again approached the original firm of solicitors she contacted in March 2013, and was advised that their fees and terms had changed and she therefore decided to instruct them to pursue her civil claim against the defendants.

The judge considered the delay in issuing proceedings to be very long.  This was not a case where the claimant had not appreciated for many years that the alleged abuse was wrong. The judge accepted that before 2013 the inhibiting effects of shame and embarrassment may have played a role in her delay in bringing the claim, but after 2013 and following her consulting with solicitors, there were no inhibiting effects and her choice not to pursue the claim was a choice to avoid potential financial exposure. Significantly, whatever the reasons for the delay, the death of Fr Webb many years earlier meant that the prejudice caused to the defendant as a consequence of the delay was substantial.  Indeed, the reasons for her delay in pursuing the claim did not in any way qualify or temper the prejudicial effect of the delay on the defendants’ ability to defend.

Conclusion

This judgment is a further example of the significance that the Court’s continue to attach to the availability of the alleged abuser to respond to a claimant’s allegations on all issues. This echoes the recent decision of Nicol J in Peter Murray v Fr Martin Devenish [2018] EWHC 1895 (QB) in which the Court also found that the death of the alleged abuser had “undeniably disadvantaged” the defendant. 

In cases where the alleged abuser is deceased cases are commonly brought on the basis that everything a claimant now asserts is be taken as accurate and that there is nothing a defendant could ever have done that would have enabled them successfully to defend the claim, even if it had been brought in time. However, the problem with this approach is that it still falls into the trap identified by the Court of Appeal in Bryn Alyn and puts the cart before the horse.

Accordingly, in the absence of the person who is alleged to have committed the abuse, a defendant’s inability to mount an effective challenge in such claims lies at the very heart of its limitation defence, something which the Courts continue to recognise and rightly apply in appropriate cases.

For more information, please contact Lauranne Nolan.