01 November, 2018
Peter John Sebastian Murray v Martin Devenish (on his own behalf & as representative of all other members of the unincorporated association known as The Sons of the Sacred Heart of Jesus) (2018) EWHC 1895 (QB) QBD (Nicol J) 24/07/2018
The claimant alleged that he had been sexually abused in the 1970s by a volunteer teacher at a school run by the defendant religious order. In 2013 the claimant issued his claim, 34 years after the expiry of the limitation period. He claimed that the defendant school was vicariously liable for the abuse which had left him with post-traumatic stress disorder and had ruined his chance of a religious vocation. He asserted that he had delayed bringing proceedings until after his mother had died as he was concerned at how much the claim would upset her.
The court refused to apply its discretion to disapply the limitation period. The Judge found that the degree of prejudice caused to the claimant was outweighed by that faced by the defendant. The 34-year delay in bringing the claim had severely prejudiced the prospects of a fair trial. The alleged perpetrator of the abuse had since died, there was a lack of personnel documentation owing to the volunteer status of the teacher and the claimant had destroyed some of the contemporaneous documentation. The claimant claimed that he had delayed in bringing proceedings to protect his mother but by 1998, the claimant had recognised and disclosed his abuse yet failed to bring a claim. The Judge cited a quote from an earlier case 'One cannot put a cause of action onto a shelf with a view to taking it down again sometime later in the indeterminate future when you feel like using it.'
The issue of limitation is often a thorny issue in historical abuse cases. S.33 of the Limitation Act 1980 gives the Court a discretion to disapply the primary limitation period. The burden of proof is on the claimant to persuade the court that the limitation period should be disapplied. Section 33(3) sets out a list of particular factors which the court should take into account when considering whether or not to set aside limitation including the length and reasons for delay, the impact of the passage of time on the evidence, the conduct of the defence after the cause of action arose and the steps, if any, taken by the claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received. The limitation period exists for public policy reasons to provide certainty and as evidenced by this case, the Courts do not take the decision to intervene lightly.