The English law of limitation has been problematic for half a century. Instead of an absolute ban (too late/no claim) as exists in some areas of English law, the law of personal injury perhaps because of its socially sensitive nature, is subject to the exercise of judicial discretion under section 33 of the Limitation Act 1980. "Hard cases make bad law" is an old saying and never more true than in this area. Judges faced with individuals who have suffered terrible injuries, mental or physical, tend to be broad in their use of that discretion. However, whilst English courts continue as places in which justice is to be delivered, rather than as tribunals for compensation, the Court of Appeal has, from time to time, whilst emphasising the discretion of the trial judge to be "broad and unfettered", nonetheless tried to cautiously rein in a too undisciplined approach by judges. There is some suggestion in the legal press that we are going through one of those periodic periods of judicial fashion in which it is harder for claimants in abuse cases to succeed in setting aside the time limit. Whether that is the case or not and whether that is a reaction to the vast number of abuse claims that we have seen in the last few years, it is too early to say. JL v The Archbishop Michael George Bowen & The Scout Association is however an interesting case in which the claimant was unsuccessful in the Court of Appeal.
In brief, the Claimant alleged that he was abused by a former Scout chaplain and Catholic priest between 1984 and 1987 when he was between 16 and 19 and thereafter from time to time until 1999. By then he had qualified as a solicitor and had subsequently ceased to practice, retraining in another career. Proceedings were begun in 2011. The priest died in 2014. The trial was in 2015. What was interesting about JL was the effect and importance of the conviction of the priest under section 15 of the Sexual Offences Act 1956. Ordinarily speaking, the existence of a conviction makes life very difficult for a defendant. As Lord Brown had reminded us in A v Hoare  UKHL, if there has been a conviction "the problems of investigating antique events may be of less consequence."
In this case, the conviction related to JL and there was no issue about that. Unfortunately, after the claim had been intimated, the nature of that conviction had not been appreciated. Under the Sexual Offences Act, consent was relevant from the age of 16 and not from the age of 21. The question of consent had therefore been potentially relevant to the conviction. The priest later said that he had only pleaded guilty to save himself a heavier sentence and the church embarrassment. In fact there was a potential defence, but beyond the Claimant's evidence, that issue could not now be investigated. However, even if the priest had still been alive, the delay would still have prejudiced the Defendant.
It should also be said that the Claimant's evidence had been much criticised by the Court below. His claim, put forward at £500,000 included compensation for the assaults, treatment costs and a claim for past and future loss of earnings. The judge had rejected by far the greater part of his claim - namely that his many working and private life problems had been the result of the priest's actions. In the end at trial, he received £20,000 for the assaults themselves. The judge at first instance permitted the Claimant to proceed notwithstanding the time bar but accepted that the arguments were finally balanced. He found that the Claimant's psychological state as a result of the assault explained the delay and that the inhibition had only disappeared when he had received therapy in 2009. The judge accepted that the delay had affected the cogency of the evidence – particularly the death of the priest – but in all the circumstances, having heard the evidence and having been told of the evidence that he could not hear, it was just and equitable for the claim to proceed.
The Court of Appeal (Burnett LJ giving the leading judgment and Lewison LJ and the Senior President of Tribunals, Sir Ernest Ryder agreeing) allowed the Defendants’ appeal and dismissed the Claimant’s claim. The Court took the view that when deciding the limitation question, the trial judge was wrong to have disapplied the limitation period, both in law and in his appreciation of the material facts:
"…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 the delay on the cogency of the evidence. To do otherwise would, as the Court said, be to put the cart before the horse".
In JL, the judge, having rejected much of the Claimant's case and evidence tried to follow that guidance. Thus, the overall period of delay was, on the pleadings, between 9 and 23 years. On the case as it survived the Judge's findings, that reduced to between 21 and 23 years. In an important and authoritative gloss on Nugent, the Court of Appeal reaffirmed the approach of Thomas LJ in Raggett v The Governors of Preston Catholic College  – namely that the judge had to make "an overall assessment including the cogency of the evidence and the potential effect of the delay on it" . In JL, Burnett LJ and the rest of the Court took the view that "the findings and conclusions arising from (the judge's) rejection of the claim for the bulk of the period and, more generally, the adverse findings he made against JL were important in determining the length of the delay, the reasons for the delay and the extent of prejudice suffered by the (Defendants) in defending the claim".
It was simply unrealistic to take the guidance in Nugent as literally as the trial judge had – in doing so, Lewison LJ stated that there had been an "Alice In Wonderland quality about reading a judgment in which the limitation period was disapplied on the basis of a view of the facts that was far removed from the facts that the judge actually found."
This is a useful case for local authorities giving further guidance on the correct approach the courts should take to limitation in abuse claims and helping to explain the rather difficult guidance given to judges in Nugent. It makes it clear, under the guise of 'explaining' Nugent that judges are not expected to do the impossible and that when hearing limitation issues and liability issues together, they are not merely allowed, but enjoined, to consider the limitation issue in the context of the judge's overall factual findings.