AB v The Society of Jesus Trust 1929, Preston Catholic College 5 May 2009 High Court (Jesuits)

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

AB sought damages for personal injury, loss and damage due to sexual abuse and assaults committed on him by a teacher Father Michael Spencer, an RE and PE teacher at Preston Catholic College, Preston, Lancashire, where he was a pupil from 1969 until 1976.

prestoncatholiccolege2

Issues were vicarious liability of Society of Jesus as Preston Catholic College which was no longer  in existence. They denied running the College which had Governors, who operated and managed the college They denied any abuse occurred and brought up limitation.

One surviving governor was then found, and then documents found that showed an insurance company (unnamed)  was liable for the Society of Jesus to indemnify the Governors, so the second defendants, the Governors were dropped.

Even though time barred 28 years previously, the judge thought it equitable to proceed and that a fair trial could happen after this time.  (This after masses of detail given by AB)

I have redacted but this is in the public domain, see after the case.

This case may also be of interest, with the focus on football abuse, as Father Spencer had a coaching link to Preston North End Football Club.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is redacted for personal detail by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

prestoncatholiccolegeCatholic College War Memorial Preston

[2009] EWHC 909 (QB)

Case No: HQ07X00543

IN THE HIGH COURT OF JUSTICE


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05 /05 /2009

Before: The Hon. Mrs Justice Swift DBE

Between AB

v.

The Society of Jesus Trust 1929 for Roman Catholic Purposes

The Governors of Preston Catholic College

Mr Robert Seabrook QC & Mr Justin Levinson (instructed by Clifton Ingram LLP) for the Claimant

Miss Kate Thirlwall QC & Mr Steven Ford (instructed by Berrymans Lace Mawer) for the First & Second Defendants

Hearing dates: 23rd– 26th March 2009

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. MRS JUSTICE SWIFT DBE

The Hon. Mrs Justice Swift DBE:

Introduction

1. The claimant claims damages for personal injury, loss and damage consequent upon sexual abuse and assaults allegedly committed on him by a teacher at Preston Catholic College, Preston, Lancashire, where he was a pupil from 1969 until 1976. I heard the issues of liability and limitation in this case between 23 and 26 March 2009. This judgment deals with those issues.

2. Proceedings were commenced on 16 February 2007, initially against the first defendants as the former operators of the College, which is no longer in existence. It was alleged that the first defendants were liable on two bases, namely vicarious liability for the sexual abuse and assaults, and negligence. In their Defence, the first defendants did not admit that they operated and managed the College. They denied that they employed the teacher concerned and they did not admit that a relationship giving rise to vicarious liability had existed. They also denied negligence. They asserted that there had been a board of governors who were responsible for operating and managing the College. They did not admit that the abuse had occurred and raised the limitation defence.

3. There then followed a protracted argument as to whether the first defendants were in fact the correct defendants, as a result of which the second defendants were subsequently joined as a party by an Amended Claim Form and Amended Particulars of Claim dated 14 March 2008. The second defendants did not acknowledge service of the proceedings against them as a result of which, on 9 June 2008, judgment was entered against them by order of Master Miller. At the same time, the Master ordered that there should be a split trial with all issues of liability (including limitation) in respect of the first defendants being dealt with prior to and separately from issues of causation and quantum. At that stage, no insurer for the second defendants had been identified. The Amended Claim had been served on the only surviving governor of the College. Shortly before the hearing of an enquiry as to his means, the first defendants’ insurers located policy documents which showed that they were liable to indemnify the second defendants in respect of the claim. It was therefore agreed that the judgment against the second defendants should be set aside. I made that order by consent at the start of the trial.

4. The second defendants then filed a Defence, in which they admitted that they had performed the statutory and other functions of a governing body in respect of the College. They admitted also that they had employed the teacher and that the relationship between the teacher and the second defendants was one giving rise to vicarious liability on the part of the second defendants for any tortious acts or omissions by the teacher. They did not admit that the abuse had occurred and raised the limitation defence. In the light of the admissions contained in the second defendants’ Defence, the parties agreed that I should proceed to decide the issue of liability (including limitation) against the second defendants alone. At the start of the trial, I made an order by consent staying the proceedings against the first defendants.

5. At the outset of the hearing I was told that the issues I was required to determine were:

a. Did the abuse occur?

b. If so, what was its nature and extent?

c. Was the claim issued beyond the primary limitation period?

d. If so, would it nonetheless be just and equitable to allow the case to proceed?

The claimant

6. The claimant was born on [redacted] 1958. He is now 50 years old. Together with his parents and [redacted] siblings, he moved to Preston in 196[redacted]. He had what he described as a rather “old-fashionedâ€upbringing which revolved around school and the church. His mother was a devout Catholic and the whole family (including his father, who was not a practising Catholic) attended Mass every week. The claimant’s mother was clearly a very important influence in his life. His father suffered from mental health problems and appears to have taken little part in his upbringing. He has been described by the claimant as an “absent father from the emotional point of viewâ€.

7. Until the age of 11 years, the claimant was a pupil at St Gregory’s Primary School, Preston, where he was happy and progressed well. He was one of only two pupils at the School to pass his eleven plus examination. The claimant then transferred to the Preston Catholic College where he stayed until the age of 18. The College was a single sex school run by Jesuits. The Head Master and several of the teachers were Jesuit priests, although the majority of the staff were lay teachers. Pupils were educated according to Jesuit values with an emphasis on discipline. At the time the claimant went to the College, he was a small boy with blond good looks which his contemporaries described as “cherubicâ€. He was a competent football player with an intense interest in the game.

8. Father Michael Spencer SJ, the teacher whom the claimant alleges was responsible for abusing him, taught French and Religious Education (RE). He was a physically imposing figure with a powerful and intense personality. He had an obsessional interest in football and was responsible for coaching one school year’s football team as its members progressed through the College. The success of its football teams was matter of considerable importance within the College. Father Spencer was also involved in the coaching of members of the Preston Town Football Club.

9. It is clear from a letter dated 3 July 1976 written by the then Headmaster of the College, Father Richard Wren SJ, to a senior member of the Jesuit Society, that Father Spencer was not a satisfactory member of staff. In the letter, Father Wren described Father Spencer’s refusal to get out of bed in the morning (although it was not referred to in the letter, he was described by some of the witnesses as a heavy drinker), his absence and lateness for classes, his failure to set and correct work and his neglect of his College duties in favour of Preston Town Football Club business. His teaching of RE was said to be “a scandalâ€since, even if he was present for a class, he was “as likely to talk about football or anything else that might enter his mindâ€. The letter did not allude to any matters of a sexual nature. It stated that his gross failures as a member of staff were becoming known in educational circles outside the College and were damaging its good name. All attempts to persuade Father Spencer to change his ways had proved fruitless. Father Wren requested that Father Spencer should be removed from the College staff at the end of the summer term. In the event, that did not happen and he remained at the College until it closed in 1978.

The abuse

The claimant’s evidence

10. When he arrived at the College, the claimant was appointed captain of the Under 11s football team. The team was initially selected and trained by a lay member of staff but, at some time during 1970 (the claimant believes that it was about March), Father Spencer took over responsibility. Football training was held at least twice a week in addition to a weekly games period. Matches against other schools took place on Saturdays during the football season.

11. The claimant’s evidence was that, from the first, Father Spencer singled out the three smallest boys in the team (of which he was one) and would regularly require them to strip naked after which he would “measureâ€each of them (including their inside legs from the genitals to the feet), ostensibly to “chart their growthâ€. These incidents took place in the pavilion changing rooms at the Grafton playing fields which (together with the Riverside playing fields) were situated in Penwortham, some distance from the College. The claimant told me that he found these measuring sessions “scaryâ€and did not know what was going on.

12. Father Spencer was a keen photographer and he would persuade the claimant to remove his clothes and would then film him naked, using both a cine and still camera; these sessions would take place at the Grafton or Riverside playing fields or in the New Gym, which was part of the College complex. (The claimant told me that the New Gym was opened in January 1970 although it is clear from the documents [2/335] that construction did not start until early 1970 and that the official opening took place some time in 1971.) The claimant said that, on one occasion at the playing fields, Father Spencer’s filming was interrupted by the appearance of the school groundsman who apologised and left. The claimant was afraid that the matter might be reported but, in the event, there were no sequelae.

13. The claimant said that, during the summer of his first year, he suffered a groin injury. Father Spencer used this as an excuse to rub his naked groin with “Deep Heatâ€several times a week. This would take place in an office on the half landing of the Old Gym. During these sessions, Father Spencer would touch the claimant’s penis “accidentallyâ€and would also pretend to “examineâ€it by drawing back the foreskin “to see if it was cleanâ€. This procedure went on for over a year. The claimant said that these incidents made him “paralysed with anguish and fearâ€. He was particularly fearful that someone (especially a fellow pupil) would walk in through the unlocked door of the office. He said that, on occasion, another priest, Father Edwards SJ, came into the room and, when he saw what was going on, apologised and left, clearly embarrassed. After these incidents, the claimant feared that Father Edwards might report what he had seen to the Headmaster. He told me that his fear of disclosure was worse than his fear of Father Spencer’s behaviour continuing. He described how he would lie awake at night, imagining the public shame and humiliation that would result if Father Spencer’s activities became known.

14. The claimant said that there were many other occasions when Father Spencer assaulted him by touching his genitals and/or requiring him to strip naked. This would happen at lunchtime, or before or after football practices and games (often under the pretext of speaking to him in his capacity as captain), and in and around the changing rooms and showers. Incidents would occur several times a week and continued as the claimant progressed through the College.

15. The claimant said that Father Spencer’s attentions were not confined to term time. He would send the claimant letters during the school holidays and half terms, informing him that he was required for team training on a specified day or days. The claimant would attend and would find that no one else had been invited. Father Spencer would make him strip and then do “exercisesâ€by bending over in various poses with his legs apart. He would instruct the claimant to lie on his back with his legs bent back and spread apart to “show how supple he was.â€He would kneel down and, in an apparently playful way, touch the claimant’s penis, referring to it as “your wee manâ€. These sessions would often last all day. The claimant described how, on these and other occasions, he was terrified of getting an erection and would try and will himself out of his body, “to just be not thereâ€. He would experience dread when a letter arrived and he knew that he would be alone with Father Spencer.

16. The claimant described an incident which occurred at some time between the opening of the New Gym (in about 1971) and 1973, in the office above the indoor pitch in the New Gym. He said that, on these occasions, Father Spencer would often deliver a preamble, explaining why the desired activity was to take place. The claimant said that he would be filled with dread when these preambles started since he knew what would inevitably follow. He described feelings of isolation and loneliness and of being far from home and from help. On this particular occasion, Father Spencer told him that he needed to check that the claimant’s “back bits were properly connectedâ€to his “front bitsâ€. When the claimant was naked, he made him bend over the desk with his leg wide apart while he knelt behind him. He told me that this was one of the occasions when he pretended not to be there. He pressed his cheek as hard as he could against the desk and pretended that he was out in the solar system somewhere. The claimant said that, as a result of undergoing regular sessions of Eye Movement Desensitisation and Reprocessing (EMDR) treatment since February 2006, he had recalled that this was the first of two occasions when Father Spencer digitally penetrated his anus.

17. The claimant said that, he remembered another occasion (probably when he was in the third or fourth year) when Father Spencer grabbed him while he was following the rest of the team out of the changing rooms onto the pitch for a match. He took the claimant into a nearby lavatory and insisted that he needed “Deep Heatâ€applied to his groin. The claimant said that he was quite rough during this incident, grabbing the claimant’s buttocks, rubbing “Deep Heatâ€into his groin, fondling his genitals and once again inserting his finger into the claimant’s anus. The claimant recalled being acutely aware that the rest of the team would know what was going on and that they were openly mocking him as he ran onto the pitch. The claimant’s evidence was that he had remembered the digital penetration on this occasion as a result of his EMDR treatment.

18. The claimant said that boys were not allowed to wear underwear under their football shorts. He suggested that this was because of an obsession with cleanliness that was part of the ethos of the College. Father Spencer would shower with the boys and would want to soap them down. He found it odd to be in such close proximity to an unclothed adult male, especially a priest. He was aware of Father Spencer taking photographs of him and other boys in the showers, although not, as another witness suggested he may have done, surreptitiously.

19. The claimant’s contact with Father Spencer was not confined to the football team. In the third and fourth years, Father Spencer taught him French and Religious Doctrine and, in his third year, was his form master. In addition, Father Spencer became a regular visitor to the claimant’s home, where he would frequently go for Sunday lunch. When the claimant was in the third year, Father Spencer took him to watch Manchester United play at Old Trafford. The claimant said that he was excited about this since he was a great fan of George Best. At the match, whenever Manchester United scored a goal, Father Spencer would take the opportunity to grab the inside of the claimant’s thigh.

20. As a result of Father Spencer’s evident preference for the claimant, he was taunted by his peers for being Father Spencer’s “petâ€or “Spenny’s bum boyâ€. The claimant’s evidence was that, because of the favouritism showed to him by Father Spencer, life at school “became agonyâ€. He explained that, while the abuse was going on, he viewed Father Spencer’s attentions as an “awful, inexplicable and unimaginably burdensomeâ€problem that somehow had to be kept under control. He said that he thought at the time that what Father Spencer was doing was wrong but that it was somehow his own fault.

21. He said that the abuse continued for as long as he was playing football at the College. He continued to play during his fifth year (because he had been advanced by one academic year, he was in fact spending the first of three years in the sixth form at that time), which would have been the academic year 1973/4, when he was 15 years old. He did not play football during his last two years at the College.

22. The claimant recalled an occasion when his brother, who was more than five years younger than he, told his mother that another priest at the College had put his hands down his swimming trunks. The claimant’s father reported the matter to the Headmaster. The claimant believed that the priest was subsequently transferred to another school. The documents show that the priest in question left the College for another school at the end of the 1976/77 academic year. The claimant told me that his brother’s complaint was made at a time when Father Spencer’s abuse of him was still going on and that he envied his brother for being open about what had happened to him. He believed that the complaint was made when he was in his fifth year at the College. However, it appears from the documents that his brother was in the third year at the College in the academic year 1976/77 [2/456] and that he cannot therefore have joined the school until the claimant was in his sixth year (i.e. his second year in the sixth form) so that his recollection about this must be faulty in some respect.

Other witnesses’ evidence of abuse

23. In support of his allegations of abuse, the claimant relied on the evidence of eleven of his contemporaries at the College. Six of those had come forward spontaneously following an article about the forthcoming trial which appeared in a local newspaper a few days before the trial started. Their evidence was not challenged by the second defendants. It is unnecessary for me to review the evidence of each witness in detail. Instead, I shall summarise the main points.

24. Many of the witnesses spoke of Father Spencer’s presence (often with a camera) in the showers and the changing rooms while the boys were undressed, his anxiety to assist them in washing and drying their private parts and his insistence that the boys should swim naked, even when they were reluctant to do so. Several witnesses spoke of his practice of towelling down boys after showering and swimming, paying particular attention to their buttocks and genital area. The witnesses referred to the rule that no underwear was to be worn under football shorts and described how Father Spencer would check that the rule was being obeyed by pulling out the waistband of each boy’s shorts and peering down at or feeling his genitals. One witness, James Rae, said that Father Spencer would also slide his hand inside the back of the boys’ shorts and down the cleft of their buttocks, ostensibly to ensure that their shirts were properly tucked in.

25. Another witness, KL, described how, in the summer of 1970, before he went to the College (he started in the autumn of 1970, a year after the claimant), he met Father Spencer at the claimant’s home. Father Spencer invited him to accompany the claimant and another boy to a football training session at the College. After the three boys had changed into their shorts, Father Spencer asked him whether he was wearing underpants under his shorts. Before KL could answer, Father Spencer put his hands down his shorts and felt his penis through his underpants. He did the same with the other two boys. He then instructed them to remove their underpants. On a subsequent occasion, again in the summer of 1970, the boys removed their underpants before putting on their shorts but were still subjected to the same handling. Father Spencer then allowed them to swim naked in the College pool and took photographs as they did so.

26. CD described one occasion when Father Spencer invited him to football training and he arrived to find that he was the only person attending. While they were alone together, Father Spencer took photographs of him while he was naked. He also recalled that, on a football tour of Scotland in 1973 or 1974, Father Spencer would visit his and other boys’ bedrooms and massage them while they were naked, touching their genitals frequently in the process.

27. EF described how, in his first or second year, Father Spencer would ask him and another boy to stay behind after football practice to help put away the goal posts. On about six occasions over a period of approximately 18 months, Father Spencer took the boys behind the storage sheds, told them to remove their clothes and photographed them naked.

28. GH described how, on one occasion, Father Spencer called him to the front of the class to discuss homework or some other matter and, while he was speaking, slid his fingers up the leg of his shorts. This was done quite openly in order, he believed, to humiliate him and amuse the class. KL said that he was “botheredâ€about the way in which, when he went to speak to Father Spencer, Father Spencer would put his arm round him and rest his hand on his buttocks. He sat near the front of the classroom and saw him do the same to others. On another occasion, KL was in the changing rooms when he suddenly felt a hand on his bare buttock and realised that it was Father Spencer. He reacted aggressively and it was the last time that Father Spencer bothered him in that way.

29. Several witnesses said that it was well known that the claimant was a “petâ€of Father Spencer. As a consequence, he was subjected to bullying and ridicule. He was, they said, openly referred to as “Spencer’s (or Spenny’s) bum boyâ€. KL said that it was “impossible not to noticeâ€that the claimant was a frequent visitor to the office Father Spencer shared with Father Edwards. He described Father Spencer’s behaviour towards the claimant as “blatantâ€. KL described how, having been a good friend of the claimant before going to the College, he deliberately distanced himself from the claimant once there in order to avoid becoming the target of the boys who bullied the claimant.

30. OP told me that, when he and the claimant were in the first year, he attended the claimant’s birthday party at his home (that would have been in June 1970). Father Spencer was there and it was decided that the boys should play football in the street. The claimant and Terence Holohan went up to the claimant’s bedroom to change. As they were doing so, Father Spencer arrived with a cine camera and insisted on filming the claimant as he changed. OP said that he felt very uncomfortable about the situation, particularly since Father Spencer had closed the bedroom door behind him. As a result of that incident, he took some advice from older boys about how to deal with Father Spencer if he should behave inappropriately towards him. The advice was to “stand up to himâ€. When Father Spencer asked him to scrub his back in the shower, he put this advice into effect and was not bothered any further.

31. OP recalled an occasion, probably in the early summer of 1970, when he walked to the Grafton playing fields and saw Father Spencer using a cine camera to film the claimant as he was undressing near to a windbreak in the middle of the football pitch.

32. The claimant’s mother, Mrs MN, said that she experienced disquiet at the interest Father Spencer was showing in the claimant. It appeared, she said, “singular and obsessiveâ€. She noticed that, when, at Father Spencer’s request, the claimant attended for football training in the school holidays, there seemed to be no one else around. Father Spencer would give the claimant presents which made her uneasy. She decided to invite Father Spencer for a meal. After that, he became a frequent visitor to the house, sometimes just “turning upâ€with the claimant after a Saturday football match and at other times coming for Sunday lunch. She found him pleasant enough, although she was bored by his incessant talk of football. Although she continued to feel a sense of unease, she said that she did not suspect that Father Spencer was abusing the claimant. Indeed, she remarked that “the possibility of a priest abusing a boy in his care was inconceivable at that timeâ€.

The second defendants’ evidence

33. I heard evidence from Arthur Malone, who was a lay teacher at the College from 1958 until its closure in 1995. He said that he had had little to do with Father Spencer, whom he described in his witness statement as “very affableâ€. He would see him in the common room but Father Spencer was part of a “cliqueâ€of staff who would gather together and talk about football. He said that he considered Father Spencer’s enthusiasm for football to be excessive, even ridiculous. He said that he was surprised at the contents of Father Wren’s letter complaining about Father Spencer’s conduct (see paragraph 10 of this judgment). He said that he had never regarded Father Spencer as an exemplary member of staff and he was far from being a model of a Jesuit priest but he had not realised that he had been as unsatisfactory as the letter suggested. He had never heard any suggestion that Father Spencer was attracted to young boys, or any allegations of abuse made against him.

34. Father Peter Hackett SJ taught at the College between 1959 and 1963 and was Headmaster from 1973 to 1975. He said that he was not aware of any allegations about Father Spencer, or any incidents which gave him any cause for concern.

35. Father Charles Edwards SJ was the priest whom the claimant alleges walked into the office he shared with Father Spencer on several occasion to find Father Spencer rubbing “Deep Heatâ€into the claimant’s genitals. In July 2007, the first defendants obtained a short witness statement from him. He was not well at the time and it is clear from the witness statement that his memory was not good. He could not remember the date when he became a priest and was uncertain about whether he had shared an office with Father Spencer. However, he was adamant that he had never seen Father Spencer indecently assaulting the claimant. He said that, if he had done so, he would have reported the matter to the Headmaster or the police. He said that he had never heard any rumours about Father Spencer being attracted to young boys. After his witness statement had been taken, Father Edwards’ health deteriorated and he was not fit to provide further written evidence or to give oral evidence.

The claimant’s progress after the abuse

The sixth form

36. The claimant’s A Level results were disappointing: an “Aâ€grade in English, a “Dâ€in History and an “Fâ€(fail) in Latin. He re-took History and Latin in his third sixth form year. He improved his History grade to a “Bâ€and added a “Bâ€in General Studies. He failed Latin for a second time. He feared that he might not get a place at University but, on telephoning Liverpool University, was told that, since he had an “Aâ€grade in English, he would be accepted through “clearingâ€to read English there.

The claimant’s career after leaving the College

37. For the purposes of this judgment, it is unnecessary for me to deal at length with the claimant’s career after College. I shall summarise briefly the evidence he gave on this topic. [redacted]

38 -44 redacted

[2009] EWHC 909 (QB)

10

Continuing contact between the claimant and Father Spencer

45. Over the years after the claimant left the College, Father Spencer maintained contact with his family. He sent birthday cards and letters to the claimant. The claimant said that he occasionally replied. In 1989, Father Spencer officiated at the wedding of one of the claimant’s school friends and the claimant, who was best man, saw him there. He said that Father Spencer was “a very sociable guyâ€who drank with him and others the night before the wedding and was good company. In 1991, he went to considerable lengths to track down Father Spencer, who was then living in the Orkneys, and to arrange the necessary flights in order for him to officiate at his own wedding. The claimant told me that he asked Father Spencer to do this because he was a friend of the family and the

[2009] EWHC 909 (QB)

11

priest he had known best. In the same year, Father Spencer stayed with the claimant’s parents for a few days at their home in Yorkshire.

46. A small amount of the correspondence from Father Spencer to the claimant dating from around the time of his wedding survives. It contains references to their shared interest of football, as well as to other members of the claimant’s family and his fiancée/wife. It is clear from what the claimant told Dr Shapero that he tracked down Father Spencer in about 1999 and took him out for lunch. He told Dr Shapero that he thought that he had wanted to confront Father Spencer and “get my life backâ€but, in the event, had not had the courage to do so. He had asked about the films of him which Father Spencer had taken. Father Spencer told him that he had destroyed them. He had told the claimant, “When you were 11, you were beautifulâ€. The claimant had felt pity for him. He told Professor Maden that he had realised that Father Spencer was “just a sad, gay old manâ€.

47. The last communication from Father Spencer to the Claimant was a letter dated 28 June 2000, written six months before his death on 31 December 2000. It is clear from its contents that it must have followed shortly after an earlier letter written for the claimant’s birthday, four days earlier. He enclosed photographs of the claimant and his family, together with some of the claimant with other members of the football team and five of him on his own. In one photograph, he is dressed in swimming trunks and, in the others, in his football kit. In the letter, Father Spencer described the photographs of the claimant alone as “all very specialâ€. He went on:

“(The others – the super-specials –never seen by anyone and always “turned outâ€by me, had, unfortunately, to be ‘eliminated’ years later. Unfortunately – c’est la VIE)â€. [emphasis as in original]

He observed that his years of ‘retirement’ were occupied by his “camera memoriesâ€. By way of postscript, he said, “As always, I’ve read the letter – and still send it to youâ€.

The claimant’s awareness of the abuse over the years

48. The claimant’s evidence was that, during the years that followed the end of his time at the College, he retained no conscious memory of much of the sexual abuse that had occurred. He said that he had remembered Father Spencer filming him while he was naked in the showers and other places. He also remembered the massaging of his groin following his injury. He remembered the grabbing of his thigh when Manchester United scored a goal. The memories caused him no conscious distress. If he had spoken of them, it would have been in a casual, jocular fashion (as indeed was the case in the short story which he wrote in 1999). It is relevant in this context to examine the documentary evidence which is available and which might shed light on the claimant’s knowledge of and attitude to the alleged abuse.

49. His GP records contain no record of sexual abuse. In 1985, he attended his GP, complaining that he had been feeling tired and lethargic on and off for years. He told him that he was “a frustrated journalist who was working as a solicitorâ€. In September 1996, he was depressed and a friend recommended him to consult Dr Anthony Fry, Senior Consultant Physician in Psychological Medicine at the London Bridge Hospital. Dr Fry’s contemporaneous notes, made at a consultation on 3 September 1996, record, inter alia:

“Jesuit priest – Father Spencer took film of him in the shower.

[2009] EWHC 909 (QB)

12

Looking for the father

Captain of his own football team….

… Victim of exposure [I think this is the word] by Father Spencerâ€

50. In a letter written to a psychotherapist from whom he had suggested that the claimant might seek treatment, Dr Fry referred to the difficulties which the claimant had described with his relationship with his father and the problems which he (i.e. Dr Fry) believed this had caused within the claimant’s own marriage. He said:

“the deepest relationship he had with a man was with a Jesuit priest who became interested in him under the guise of football when he was about eleven years old. The Jesuit coached him at football but also abused the relationship by going on to take movie photographs of [the claimant] while he was in the shower. [The claimant] says that he was never sexually abused, but it is quite clear that he felt abused by the priest’s approach to him and there is clearly a good deal of anger around this relationshipâ€.

51. In the event, the claimant did not wish to undergo psychotherapy at that stage and instead underwent some further sessions with Dr Fry in early 1997.

52. On 25 February 2007, the claimant attended his GP, complaining that he had been depressed for a year since his wife departed. He had little energy and was experiencing “emotional panic at the thought of lifeâ€; he was “caring littleâ€and was self-neglecting. Anti-depressant medication was prescribed, although it appears that the claimant did not take it. The notes I have seen contain no further entry of a similar nature.

The events of 17 April 2005

53. The claimant described how everything changed on Sunday, 17 April 2005. He had had lunch with members of his family at a public house in Fulham. Also present were his then girlfriend [LM], the priest in charge of his sister’s parish (Father Reginald Dunkling) and a friend of Father Dunkling (JMc). The claimant knew Father Dunkling who, perhaps significantly in view of what followed, has done a lot of work with people who have been the victims of sexual abuse. The claimant’s family members left after lunch, while he, Father Dunkling, LM and JMc stayed on. The claimant said that he had been drinking over a period of five or six hours and that he had had far too much to drink. This was confirmed by LM. Father Dunkling did not accept that he himself had drunk to excess and did not recall the claimant appearing drunk.

54. The claimant and the other witnesses described how Father Dunkling and the claimant became involved in an earnest debate about religion. The claimant told me that he remembers thinking “This (i.e. what he was about to say) will win the argumentâ€. He said to Father Dunkling, “Suck on thisâ€, whereupon suddenly “a kind of flash floodâ€came over him and he was sobbing, saying “I was just a little boyâ€and telling Father Dunkling the details of the sexual abuse he had suffered at the hands of Father Spencer. He told me that he did not remember what he had said. He said that, before that day, he would never have regarded himself as a victim of sexual abuse; indeed, he would have scoffed at the

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idea. However, on 17 April 2005, the knowledge that he had been sexually abused “crashed overâ€him.

55. Father Dunkling described how it became clear to him that there was something that was deeply troubling the claimant which was causing him to become angry and aggressive in his manner. Initially, his anger was directed at the Church in general but it became apparent that there was what Father Dunkling described as “a deep rooted premiseâ€for his anger. He became increasingly distressed until eventually there was “an explosion of emotionsâ€. The claimant was physically trembling and crying. He described to Father Dunkling how he had been singled out for special treatment by a priest and had been required to remove his clothes and to submit to intimate, inappropriate touching. He was “jumping aroundâ€in his account, telling part of a story and then remembering other things. Father Dunkling said that he could remember only part of what the claimant told him. He recalled that the claimant wanted someone to listen to his account of what had happened and to believe it. He said that he was trying to control the situation, conscious that there were other people present. He was trying to calm the claimant and to reassure him that the damage which had been done to him by the actions of the priest would be acknowledged which in turn could begin a process of healing.

56. Father Dunkling recalled that the claimant had told him about letters he had received from the priest, attempting to justify his actions. The claimant told me that this might have referred to Father Spencer’s letter of 28 June 2000. It is difficult to see how that letter could properly be said to be an attempt on Father Spencer’s part to “justify his actionsâ€. Father Dunkling also said that the claimant had expressed anger towards his parents whom he felt “had ignored his pleas and had not taken seriously his fear and confusion at the timeâ€. The claimant’s evidence is that his parents were unaware of what was happening at the time. He disclosed the fact of his abuse to his mother for the first time after the incident on 17 April 2005.

57. LM described how, after an afternoon’s drinking and a long and deep debate with Father Dunkling about theology, the claimant broke down, began weeping uncontrollably and continued to do so for at least 30 minutes. He was clearly profoundly upset by something although he was too incoherent for her to grasp in detail what it was. Eventually, he grew calmer and she took him back to his flat. Jim McElhinney gave a similar account of events. He described how, during the incident, the claimant broke out in what appeared to be a severe “anxiety rashâ€on his face and around his eyes.

After the events of 17 April 2005

58. The claimant said that, following the events of 17 April 2005, he suffered overwhelming sadness and pain. However, he also experienced a sense of illumination. He viewed the events of his life in a wholly different way. He told me that he had realised over the years that he was making a mess of his life. He believed that he had consistently under-achieved, both academically and in his various employments. This had caused him a great deal of anguish. Previously, he had attributed his under-achievement, his poor employment record, his drinking, his difficulties in forming relationships with the opposite sex and the failure of his marriage to his own defects of character and had hated himself for them. However, he had realised after 17 April 2005 that all these various features, together with his feelings of anger, low self-esteem, depression, extreme negativity and exclusion, had occurred as a result of the abuse. He had realised also that, had it not been for the abuse, things would have been “utterly differentâ€. He said that, although this had been a painful process, he had experienced an element of relief since he

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no longer had to blame himself for his failures. Nevertheless, he reported that, since his memories had “surfacedâ€, he had experienced feelings of taint, humiliation, shame, worthlessness and of sadness at his wasted potential and at the loss of his career, his marriage and his confidence. These feelings had caused him to feel suicidal on occasion although he had been helped by the therapy he was receiving.

59. On Monday, 18 April 2005, Father Dunkling reported the claimant’s allegations to Father Michael Smith SJ, Child Protection Officer of the Jesuit Order. He told the claimant what he had done and suggested that he should get in touch with Father Smith. The claimant saw Father Smith on three occasions. Father Smith advised him that he needed therapeutic help and sent him a list of therapists from which to choose. He said that the Jesuit Society would pay for therapy but the claimant preferred to pay for it himself. He had a few sessions with a therapist in mid—2005 but did not find them useful.

60. In connection with these proceedings, the claimant saw Dr Jonathan Shapero Consultant Forensic Psychiatrist at Marlborough House Regional Secure Unit, Milton Keynes, who was instructed on his behalf, on [red] December 2005, [red] February 2006 and [redacted] 2007. Dr Shapero prepared two reports, dated 23 January 2007 and 11 October 2007. The claimant also saw Professor Anthony Maden, Professor of Forensic Psychiatry at Imperial College, London and a specialist in the field of the adult consequences of childhood sexual or physical abuse, who was instructed on behalf of the second defendants, on 28 March 2008. Professor Maden’s report is dated 4 November 2008. The two doctors discussed the case and produced a Joint Statement dated 20 March 2009. They both gave oral evidence before me. I shall refer to their evidence later in this judgment.

61. In February 2006, at the recommendation of Dr Shapero, the claimant started therapy (including EMDR treatment) with Dr Sharon Leicht, a psychologist. He said that, as a result, he has been able to recapture his childhood emotions, in particular the feelings of powerlessness and terror which he felt while the abuse was continuing. He has also recalled the two incidents of digital anal penetration to which I have previously referred. He is still undergoing regular therapy sessions.

62. The nature and significance of the episode on 17 April 2005 is a matter of dispute between the parties. The claimant’s case is that this was the first time that he became fully aware of the nature and extent of the abuse to which he had been subjected. The second defendants’ case is that he had been aware of those facts all along and had deliberately deployed them during a drunken debate. They say that some of the information he gave to Father Dunkling (about the letters and the failure of his parents to act) was untrue. They point out that, on 18 April 2005, the claimant visited his GP about other matters but made no mention of the previous day’s events. This, they say, demonstrates that the episode did not have the significance with which the claimant now invests it. I shall deal further with this episode later in this judgment.

The parties’ contentions about the abuse

The claimant

63. For the claimant, Mr Seabrook QC submitted that the evidence of abuse was overwhelming. The claimant’s own evidence was supported by that of his witnesses. Six of those witnesses had come forward voluntarily just before the trial. They confirmed not only Father Spencer’s propensities but also his marked preference for the claimant. He invited me to accept the claimant’s evidence in its entirety and to find that the abuse had occurred regularly, as he alleged, over a period of four to five years.

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The second defendants

64. For the second defendants Miss Thirlwall QC submitted that the claimant’s evidence was generally unreliable, a fact which I should take into account when considering both the issue of the nature and extent of the abuse and the issue of limitation. Miss Thirlwall submitted that there were elements of the claimant’s evidence which demonstrated clearly that he was not an honest witness. In his witness statement he had given the clear impression that he had been required to re-sit seven of the papers for his Law Society final examinations although it was clear from what he had told the psychiatrists that this was not the case. When asked in cross-examination about the subterfuge which he had used to persuade the Law Society to exempt him from re-taking five of the papers (see paragraph 39 of this judgment) and his remark to Professor Maden that his “whole life as a lawyer was based on a fraudâ€, he first denied making the remark (although he was reported to have made a similar comment to Dr Shapero) and alleged that this was just one of many factual errors contained in Professor Maden’s report. When pressed, he conceded that he had made the remark. He said that he had done so in an early part of the interview with Professor Maden because he was feeling very agitated. It had been a “mischievousâ€remark, he said, made because he is not comfortable with people in authority. He said that he did not regard his legal career as having been based on a fraud. He had regarded the doctor who had agreed to write the bogus letter as “an angelâ€. Miss Thirlwall submitted that this incident, together with the claimant’s evidence about and attitude towards it, demonstrated both his willingness to act dishonestly if it was to his benefit to do so and his complete unreliability as a witness.

65. Miss Thirlwall referred also to an incident described in the claimant’s witness statement and related by him to Dr Shapero. He said that, while employed as a solicitor, he and some colleagues became involved in some form of dishonest activity (either “insider tradingâ€or investing in the stock market using money from the solicitors’ client account). She contended that this provided further evidence of the claimant’s lack of probity. She relied also on what she said were inconsistencies in the claimant’s evidence about the circumstances in which he was finally dismissed from his partnership and about the break-up of his marriage. She suggested that his evidence was characterised by criticisms and complaints about many of those with whom he had dealings in the course of his career, and by his unrealistically high opinion of himself and his own abilities. She argued that the claimant’s claims about the effects of the abuse upon his academic results, his legal career and his personal life just did not stand up to scrutiny.

66. Despite these criticisms of the claimant’s evidence, the second defendants did not seriously dispute the fact that Father Spencer had been guilty of some abuse, in the form of filming the claimant naked and fondling him sexually. However, they did not accept that the abuse was as long-lasting or as severe as the claimant had described. Miss Thirlwall argued that the claimant’s evidence as to the duration of the abuse had been inconsistent. In particular, his account of the stage in the school year 1969/70 when Father Spencer had become involved in the coaching of the football team had been inconsistent and, whereas he had told Dr Shapero that the abuse had gone on until he was 15 years old, he was now saying that the abuse had continued into his first year in the sixth form. Miss Thirlwall suggested that the abuse could have lasted no more than three years.

67. The second defendants did not accept that the claimant’s evidence of the two incidents of digital penetration was reliable. Miss Thirlwall pointed out that the claimant had “rememberedâ€these incidents only after he had undergone EMDR treatment. She argued

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that memories which had been “recoveredâ€after such treatment should be treated with considerable caution and cited the evidence of the psychiatrists in support of that proposition. She also relied on the fact that that there was no other evidence of penetrative conduct which would support the claimant’s allegations.

Findings as to the happening and the nature and extent of the abuse

68. It is evident from the witness evidence that Father Spencer took every opportunity to observe naked young boys and film them, presumably for his later private enjoyment. He exploited his position as a teacher and football coach to touch and fondle the boys for his own sexual satisfaction, under the guise of concerns about their cleanliness and health. He would do this quite openly in the changing rooms, the showers and even in the classroom. It is clear that many of the boys in his care underwent casual, almost routine, acts of sexual abuse (“inspectionsâ€down their shorts; washing or towelling down between their legs, fingers up their shorts, hands on their buttocks, etc.) by Father Spencer.

69. I am satisfied, however, that, with some boys, the abuse went further. These boys may have been chosen because Father Spencer found them particularly attractive and/or because they appeared likely to be more than ordinarily vulnerable or compliant. It was those who were chosen for “measuringâ€, for naked filming sessions, for “privateâ€football practices and for other acts of abuse. It seems clear that he must have been strongly attracted to the claimant, whose position as captain of the football team brought the two of them into constant contact and offered frequent opportunities for private meetings for reasons ostensibly related to team matters. Father Spencer no doubt recognised the claimant’s keen interest in the wider aspects of football which, given his own compendious knowledge and apparently obsessive interest in the game, he was well placed to exploit. His task must have been made easier by the fact that ill health prevented the claimant’s father from playing a central part in his life. The evidence shows that Father Spencer’s close interest in, and relationship with, the claimant was widely recognised by his schoolmates, to whom the nature of that interest was clear.

70. I have no doubt that the claimant was the victim of a sustained course of sexual abuse and assaults by Father Spencer. I am satisfied that the abuse started in the early part of 1970, during the claimant’s first year at the College, when he was 11 years old. The claimant’s evidence derives considerable support from that of Mr A, who recalled attending football practice with the claimant and Father Spencer before he started at the College in the autumn of 1970. There is other support also, including the evidence of Martin Worden to the effect that it was probably in 1970 that he saw Father Spencer filming the claimant.

71. Save in one respect, I accept the claimant’s evidence about the abuse that followed. In particular, I accept that Father Spencer would take every opportunity to get him on his own and then, under some pretext or another, require him to remove his clothes after which he would touch him sexually and to observe and film him in various degrading positions. I found the claimant’s evidence about the abuse (accompanied as it frequently was, with obvious signs of distress) entirely compelling. I note also that his account does not include the type of abuse (e.g. oral or penile penetration) that are generally considered to be the most serious. If he had wished to give an invented or exaggerated account of abuse, it is likely that he would have sought to suggest that activities of this type had occurred. I accept that he was sometimes abused several times a week. I accept also that the abuse continued into his fifth year. It does not seem to me that there has been any serious inconsistency in his evidence about the time when the abuse ended. At the start of his fifth year in 1973/74, he was 15 years old. Some confusion may have been caused by

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the fact that, although that was his fifth year and he played football for the fifth year team, it was also his first year in the sixth form. I find that the abuse stopped (or, as he described it to the psychiatrists, petered out) during his fifth year. By that time, it had been going on for about four years.

72. When the claimant saw Dr Shapero in December 2005, he was asked directly by Dr Shapero whether he had been subject to specific types of sexual abuse such [redacted] He claimed to have a clear recollection of these episodes and described them graphically to Dr Shapero as he did to me. I heard no detailed evidence about the efficacy of EMDR, nor any analysis of the reliability or otherwise of memories “recoveredâ€after such treatment. Nor did I hear any evidence about the specific techniques employed by Dr Leicht. Dr Shapero told me that the purpose of the treatment was to assist the subject to “move onâ€from intrusive memories. He agreed with Miss Thirlwall that it was necessary to be cautious when dealing with memories which had apparently been “recoveredâ€after EMDR, although he saw no reason to doubt that the claimant’s memories were genuine. Professor Maden’s opinion was that it was unsafe to rely on memories which were said to have been “recoveredâ€by this process. He said that most psychiatric and psychological opinion does not accept the validity of “recoveredâ€memories.

73. I am unable to be satisfied to the required standard that the claimant’s evidence about[redacted] is reliable. In saying that, I do not suggest that he has deliberately invented that evidence in an attempt to improve his case. I have no doubt that he genuinely believes that [redacted] occurred, and indeed it is quite possible that it did. However, whether this is a belief that has arisen as a result of his general ruminations about the abuse or constitutes a genuine memory is in my view far from clear. In the event, while the act of digital penetration might seem to an outsider to be of a different order of seriousness than the other acts of abuse alleged, I am not sure that, in the particular circumstances of this case, that was so. Certainly, the claimant did not invest the allegations with particular significance. He commented that, so far as he was concerned, the abuse was “all of a pieceâ€.

74. In accepting to a large extent, as I do, the claimant’s evidence relating to the abuse which he underwent, I do not overlook the issues as to his reliability as a witness to which I have previously referred. These are matters which would require careful consideration in the event that the case were to proceed to a hearing of the issues of causation and damage.

The effects of the abuse

75. In his Particulars of Claim, the claimant contended that he suffered both immediate and long term effects as a result of the abuse. The immediate effects were said to have included humiliation, fear and a failure to achieve his academic potential at school. It is not alleged that he suffered any physical injury. In addition, it was alleged that he had suffered long term psychiatric damage in the form of an enduring personality change together with a mental and behavioural disorder due to harmful use of alcohol resulting from the abuse. It was alleged that his psychiatric disorder had caused him difficulty in forming and sustaining relationships and in pursuing his career.

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76. Dr Shapero and Professor Maden gave evidence about the effects of the abuse on the claimant. Dr Shapero’s opinion was that he has some of the features of an enduring personality change consequent upon a traumatic experience (classified in the Tenth Edition of the International Classification of Diseases (ICD-10) as F62.0) and that this condition has caused, or materially contributed to, many of the difficulties in his life, including his excessive use of alcohol which has in turn caused or exacerbated problems with forming relationships and succeeding in his legal career. Professor Maden disagreed with the diagnosis of enduring personality disorder. His opinion was that many of the features in the claimant’s life that Dr Shapero attributed to that condition could equally well be explained by the claimant’s harmful use of alcohol.

77. The psychiatrists agreed that the claimant has an extrovert personality and narcissistic tendencies, features which would account for some of his difficulties, e.g. in maintaining his various employments. Dr Shapero considered that the claimant’s personality traits represent enduring personality change as a result of the abusive experiences. Professor Maden’s opinion was that his personal traits could satisfactorily be accounted for by hereditary and constitutional factors and that his drinking stemmed from his temperament, his decision to pursue a career to which he was unsuited and other social factors. In other words, he considered that the claimant’s personality would have been the same even had the abuse not occurred.

78. The psychiatrists agreed that the evidence suggested that the claimant is a binge drinker who suffers from a mental and behavioural disorder due to harmful use of alcohol (classified in ICD-10 as F10.1). Dr Shapero believed that the claimant’s drinking was probably caused by or exacerbated by the abuse. His view was that the claimant started using alcohol to excess (and illicit drugs) as an escape from the emotional impact and memories of the abuse. Professor Maden acknowledged that it was possible that the abuse had contributed to the claimant’s excessive alcohol use but he did not accept that this was probable. His view was that the claimant would probably have used alcohol to excess even had the abuse not occurred.

79. The psychiatrists agreed that, since the episode of 17 April 2005, the claimant had become pre-occupied by the abuse and that he had experienced ruminations on the abuse, together with feelings of anger and low mood. They agreed that his symptoms did not justify a diagnosis of post-traumatic stress disorder or a depressive episode, although he had displayed some symptoms of these conditions. Dr Shapero considered that the episode on 17 April 2005 had constituted a “cathartic realisationâ€on the part of the claimant of the abuse that had occurred and that it had given rise to the symptoms from which he had suffered since. Professor Maden considered that the episode was no more than a disclosure by the claimant made during a drunken debate. His view was that the claimant’s symptoms since April 2005 had been attributable in part to the abuse and in part to the fact that his life had, in many respects, gone wrong. He accepted that he was suffering a degree of distress as a result of the abuse, but took the view that he was mistakenly fixated on the events of his childhood because, like many men of his age, he was searching for a reason for his past failures.

Discussion

80. The case came before me for determination of the issue of liability, including limitation. The Master’s direction specified that the issues of causation and quantum should (if the claimant succeeded in establishing liability) be determined later. Nevertheless, Miss Thirlwall sought to persuade me to make a finding as to whether Dr Shapero was correct

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in his diagnosis of enduring personality change as a result of the abuse (and that the condition has caused the claimant’s harmful use of alcohol), or whether, as Professor Maden has said, the effects of the abuse have been much more limited.

81. The effect of making such a finding would be to determine the question of causation. It is to be noted that, in her Skeleton Argument prepared before trial, Miss Thirlwall had stated that the two issues which I had to determine were a) limitation and b) whether or not the abuse occurred. There was no suggestion in that document that I should go further and decide the question of damage, diagnosis and causation.

82. Mr Seabrook submitted that it would be quite wrong for me to decide the issue of diagnosis at this stage. Master Miller’s direction provided only for determination of the issue of liability, including limitation. He argued that the issue of causation would require a detailed review of the claimant’s academic, employment and personal history, together with evidence from persons (including family members) who have known him since he was young and/or who had observed his behaviour at various times. It would also require a much more detailed examination of the medical literature relating to the condition of enduring personality change and its causes. He submitted that, since the case had not been prepared for trial of the issue of causation, the relevant evidence was not before me.

83. I am satisfied that Mr Seabrook is correct in saying that it is inappropriate for me to determine the issue of diagnosis at this stage. I have not undertaken the sort of detailed review of the claimant’s history that would be required to reach a conclusion about diagnosis. Nor have I heard detailed expert evidence about the diagnosis of enduring personality change contended for by Dr Shapero. Professor Maden’s view was that the diagnosis was inappropriate in the absence of a catastrophic event which could have precipitated it. He relied on the definition of F62.0 set out in ICD-10. Dr Shapero said that it was well recognised that the condition could be triggered by less extreme forms of stress. He referred to a two-page extract from a textbook (produced in the course of his evidence) which, he said, supported his view. I was referred to no other literature on the topic. In saying that, I am not making any criticism of the psychiatrists or others involved with the case. The paucity of medical literature resulted no doubt from the fact that the parties were not expecting the issue of the correct diagnosis to be determined at this hearing. That is not surprising in the light of Master Miller’s direction. The original intention was plainly that the psychiatrists would give evidence at this hearing only in connection with issues relating to limitation.

Limitation

The pleadings

84. The first and second defendants’ Defences alleged that the claimant’s claim was time barred by the provisions of section 11 of the Limitation Act 1980 (the 1980 Act), in that it had not been brought within three years of 24 June 1976, the claimant’s 18th birthday. The Defences made clear that, in the event that the claimant sought to rely on a date of knowledge later than 24 June 1979, or to contend that (notwithstanding his failure to bring the claim within the period permitted by section 11) it would be equitable to allow the claim to proceed, those matters would be in dispute.

85. The claimant’s Reply denied that the claim was time barred and averred that it had been commenced within three years of the claimant’s date of knowledge, as defined in section 14 of the1980 Act. He contended that his date of knowledge was 17 April 2005. He averred that, prior to that date, he reasonably did not know that he had been caused to

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suffer significant harm by the abuse. In the alternative, he sought a direction pursuant to section 33 of the 1980 Act that it would be equitable to disapply the limitation period.

Date of knowledge

86. The relevant provisions are contained in sections 11 and 14 of the 1980 Act. The combined effect of section 11(3) and (4) is that an action for personal injuries cannot be brought more than three years after the date on which the cause of action accrued or (if later) the date of knowledge of the person injured. Date of knowledge is defined by section 14, the relevant parts of which provide:

“(1) …in sections 11 and 12 of the Act, references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts —

(a) that the injury in question was significant; and

((b) (c) and (d) are not relevant for present purposes).

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

((3) is not relied upon in this case)â€.

87. In the leading case of A v Hoare and Ors [2008] UKHL 6 , the House of Lords considered, inter alia, the approach to be adopted by a court when considering when a claimant acquired the requisite knowledge under section 14. In particular, the court considered the extent, if any, to which account should be taken of characteristics personal to the claimant, whether pre-existing or consequent upon his injury. The court concluded that the test was an objective one and disapproved the partly subjective test which had been applied in the earlier cases of McCafferty v Metropolitan Police District Receiver [1977] 1WLR 1073 and KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 . At paragraph 34 of his judgment, Lord Hoffmann said:

“I respectfully think that the notion of the test being partly objective and partly subjective is somewhat confusing. Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally “subjectiveâ€in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed “objectiveâ€knowledge under section 14(3). But the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would “reasonablyâ€have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have

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considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment….â€.

88. At paragraph 36, Lord Hoffman cited a short passage from Bryn Alyn in which Auld LJ said:

“However artificial it may seem to pose the question in this context, section 14 requires the court, on a case by case basis to ask whether such an already damaged child would reasonably turn his mind to litigation as a solution to his problemâ€.

89. Lord Hoffmann disagreed with that approach. He continued at paragraph 37:

“This approach treats the statute as if it had said that time should run from the date on which it would have been reasonable to expect the claimant to institute proceedings. If it had said that, the question posed in Bryn Alyn would have been correct. But section 14 makes time run from when the claimant has knowledge of certain facts, not from when he could have been expected to take certain steps. Section 14(2) does no more than define one of the facts by reference to a standard of seriousnessâ€.

90. At paragraph 38, he observed:

“Section 14(2) is simply a standard of seriousness applied to what the claimant knew or must be treated as having known. It involves no inquiry into what the claimant ought to have done. A conclusion that the injury would reasonably have been considered sufficiently serious to justify the issue of proceedings implies no finding that the claimant ought reasonably to have issued proceedings. He may have had perfectly good reasons for not doing so. It is a standard to determine one thing and one thing only, namely whether the injury was sufficiently serious to count as significantâ€.

91. However, Lord Hoffmann made clear that the question of whether the claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings is not irrelevant to the issue of limitation. At paragraph 45, he said that the law:

“…deals with that question under section 33, which specifically says in subsection (3)(a) that one of the matters to be taken into account in the exercise of the discretion is “the reasons for … the delay on the part of the plaintiffâ€.

92. Hoare was considered by the Court of Appeal in the case of Albonetti v Wirral Metropolitan Borough Council [2008] EWCA Civ 783 . Mr Albonetti alleged that he had been abused between the ages of 15 and 16 while he was living in a children’s home; that would have been in about 1970–71. The alleged abuse included acts of masturbation, anal intercourse and oral sex. Despite suffering from psychiatric problems during the 1980s, Mr Albonetti told no one about the abuse until 1996. In 1998 or 1999, he reported it to

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the police, who advised him to consult a solicitor. He did so in August 1999. Proceedings were issued in August 2001 and, following receipt of a supportive medical report in November 2001, Particulars of Claim were drafted and served.

93. The Particulars of Claim pre-emptively pleaded reliance on sections 11 and 14 of the 1980 Act. Mr Albonetti contended that he had not been aware that he had suffered a significant injury as a result of the abuse until receipt of the medical evidence in November 2001. The abuse had resulted in no serious physical injury and he was unaware that he had suffered or might suffer any serious psychiatric injury as a result of the abuse. He therefore claimed that he had not acquired the relevant knowledge for the purposes of section 14 until November 2001. In the alternative, he contended that he had not acquired knowledge until he was first advised to seek the advice of solicitors in 1999. In the further alternative, Mr Albonetti relied on section 33 of the 1980 Act.

94. In determining the preliminary issue of limitation, the judge at first instance referred to Bryn Alyn and made clear that he was applying the partly subjective test approved in that case. Having directed himself accordingly, he held that, by 1976 (when he attained the age of 21) Mr Albonetti did not have knowledge that the injury in question (i.e. the immediate effects of the abuse) was significant. Even when he experienced mental illness in 1986, he was not aware that it was attributable to the past abuse. The judge found that he did not know that until a date which fell within the three year period before the commencement of proceedings.

95. By the time Albonetti came before the Court of Appeal, the case of Hoare had been decided and it was conceded by counsel for Mr Albonetti that the judge had applied the wrong test. Applying the objective test, the Court of Appeal concluded that Mr Albonetti must have known at all times after it occurred that the abuse he had suffered amounted to a significant injury. He would not have known whether it was worth bringing an action but he would have known enough to make it reasonable to expect him to consult a solicitor.

96. At paragraph 21 of her judgment, Smith LJ said:

“The ‘injury in question’ for the purpose of section 14 must be the injury which the claimant knows about at the material time. The initial purpose of these provisions was to assist a claimant who did not know at the time that he had suffered any injury at all and only discovers that he has been injured years after the tort was committed. However, it was plainly also the intention of Parliament to assist a claimant who knew at the time of the tort that he had suffered a trivial (non-significant) injury but only discovered much later that he had in fact suffered a significant injury. As Bingham LJ explained in Stubbings , during the 1970s or 1980s a claimant might well not have realised that he or she was going to suffer long term psychiatric sequelae as a result of the abuse. Here, the judge found that it was not until a very late stage (in fact he said 2001) that the claimant knew that his psychiatric problems were or might be related to the abuse. Accordingly, the ‘injury in question’ to be considered is the immediate effect of the abuse, namely the pain, distress and humiliation which the respondent experienced at the time and rememberedâ€.

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Smith LJ concluded that the allegation of anal rape by more than one man on more than one occasion could not sensibly be regarded as anything other than a significant injury.

The claimant’s contentions on date of knowledge

97. It was argued on behalf of the claimant that the immediate effects of the abuse were not such that a reasonable person would have considered them sufficiently serious to justify instituting proceedings. The abuse, while prolonged and distressing, was significantly less serious than that in Albonetti . It was not painful and the claimant suffered no physical injury. Reliance is placed upon the observation of Smith LJ at paragraph 32 of her judgment:

“For the avoidance of doubt, I wish to make it plain that I am not suggesting that, in every case of abuse, the victim must be taken to have known at the time that he has suffered a significant injury. I quite accept that, where the abuse is of a less obviously intrusive nature, a different conclusion might be reachedâ€.

Mr Seabrook submitted that this was precisely the type of case that Smith LJ had in mind when making that observation.

98. So far as the long term effects of the abuse are concerned, the claimant’s case is that, during the years between the abuse and April 2005, he had no knowledge that he had sustained any damage other than the immediate effects of the abuse. His evidence was that his only conscious memories of the abuse were of Father Spencer filming him naked in the showers and elsewhere and rubbing “Deep Heatâ€into his groin. He said that, at the time the abuse was happening, he distanced himself from it and forgot the incidents immediately they occurred. He said that, as a consequence, he “never knewâ€what had happened until his memories came flooding back in April 2005. Up to that point, the memories had just not been in his head. He explained that he had not characterised the activities he had recalled as “sexual abuseâ€. He was able to dismiss them as the acts of an eccentric. In 1996, he denied to Dr Fry that he had been sexually abused. He told me that that was because, at the time, did not regard what had been done to him as sexual. In his report, Dr Shapero described how the claimant had told him that, before April 2005, he had never even considered (at a conscious level) that what he had experienced had been sexual abuse. He said that, consequently, the claimant would have been unable to make any links between the abuse and his psychological difficulties. He observed that, in his clinical experience, it was very common for a realisation of the links between abuse and symptoms being suffered by the victim of the abuse to be delayed well into adult life.

99. The claimant relied on the opinion expressed by the psychiatrists in their Joint Statement to the effect that:

“[the claimant] seems not to have been aware of any ill-effects on his personality and functioning until 2005… We agree it is not uncommon for adults to fail to appreciate the nature or extent of the effects of having been sexually abused until many years later, although this type of dramatic emotional catharsis (if that is what it was) is rareâ€.

100. I described at paragraphs 54–58 of this judgment the episode that occurred on 17 April 2005 and the claimant’s subsequent realisation that, as a result of the abuse, he had

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suffered psychiatric harm which had adversely affected all aspects of his life. He said that, prior to April 2005, he was unaware that he had suffered any psychiatric damage as a result of the abuse. He said that, if he had known that, he would have initiated proceedings at a much earlier stage. He was after all a litigation solicitor for much of the relevant period. Moreover, if he had known that he had suffered psychiatric harm as a result of Father Spencer’s behaviour, he would not have invited him to officiate at his wedding or met him for lunch in 1999.

101. In oral evidence, Dr Shapero suggested that the claimant’s lack of awareness, during the intervening period, of the full extent of the abuse to which he had been subject could be explained by a process known as dissociative amnesia. Dr Shapero had not advanced this explanation before, although he had referred to “dissociationâ€on a couple of occasions in his reports. In particular, there was no mention of dissociative amnesia in the Joint Statement produced by the psychiatrists a very short time before Dr Shapero gave his evidence. Dr Shapero explained this omission by saying that the evidence for the presence of dissociative amnesia had been strengthened by the oral evidence given by the claimant. He explained that the mechanism of dissociative amnesia is that, faced with difficult emotional circumstances, the subject will “put his mind elsewhereâ€and succeed in forgetting what has happened. He said that he was not putting forward dissociative amnesia as a diagnosis, but rather as an “explanationâ€.

The second defendants’ contentions on date of knowledge

102. The second defendants argued that, on any view, the claimant must have known that he had sustained significant injury by that time he was 18 years old. He was clearly aware of the nature of the abuse as it was occurring. They pointed out that he conceded that he had retained memories of being filmed in various poses while he was naked, of having “Deep Heatâ€rubbed into his groin and of Father Spencer gripping his thigh when a goal was scored at Old Trafford. They said that the claimant had known all along that he had been subjected to repeated sexual assaults of an intrusive nature over a long period which constituted a violation to his person and that, viewed on an objective basis, he must thus have been aware at all times that he had suffered a significant injury. He was well aware of the nature and extent of the abuse and of its effects upon him. The events of 17 April 2005 had not added to his knowledge. He had merely chosen to disclose information that was already known to him. The only “newâ€information which could possibly have emerged from that incident was, they said, an awareness of the strength of some of the emotions he had experienced at the time of the abuse.

103. As to Dr Shapero’s suggestion that the claimant had experienced dissociative amnesia, Professor Maden told me that the techniques that the claimant said he had used during the abuse in order to “will himself out of his bodyâ€were well recognised “distractionâ€techniques, often described by victims of sexual abuse. They were very different from dissociation. He said that “distractionâ€is a device used consciously by an individual to distance himself from what is going on around him. Dissociative amnesia on the other hand is an unconscious process which causes the individual to cut himself off from the relevant experience as a result of which all memories of it are lost. Professor Maden expressed some confusion about Dr Shapero’s suggestion that dissociative amnesia was an “explanationâ€for what had happened, not a diagnosis.

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Conclusions on date of knowledge

104. I do not accept the evidence of Dr Shapero that, in the period between the end of the abuse and April 2005, the claimant had dissociative amnesia which left him with no memory at all of most of the abuse that had occurred. Dr Shapero advanced the suggestion for the first time in the course of his oral evidence. It was not fully developed in his reports or in the Joint Statement. I did not understand the distinction he sought to draw between a “diagnosisâ€and an “explanationâ€. I am satisfied that Professor Maden was correct in saying that the techniques which the claimant was describing were conscious distraction techniques, as opposed to unconscious dissociation.

105. The claimant’s contention was that he had no memory of much of the abuse or of the intense emotions connected with it. I accept that, as is not uncommon in cases of sexual abuse, the claimant had to some extent suppressed his memories of the abuse and, in particular, the emotions associated with those memories. It seems clear that, until April 2005, he did not recognise (or at least acknowledge to himself) the fact that he had been the subject of sexual abuse. Even so, it is clear from his evidence that he was at all times able to remember many incidents of abuse.

106. I am satisfied that the episode which occurred on 17 April 2005 resulted in an awakening of the memories of certain incidents of abuse that had occurred and, more particularly, of the emotions associated with the abuse. I do not accept the contention that the claimant was merely deploying for the purposes of argument information of which he had always been aware. I do not attach any significance to the inaccurate information reported by Father Dunkling. Given the circumstances in which the claimant made his disclosures, it would not be surprising if his listeners had misunderstood some aspects of his story. Nor do I regard it as particularly surprising that he did not tell his story at a GP’s appointment the following day. It is clear from the evidence that, whatever the precise nature of the episode on 17 April 2005, it changed the way in which he viewed the abuse which had occurred and had an effect on his psychiatric state. I am satisfied also that it was after that date that the claimant became convinced that the abuse had resulted in significant psychiatric harm which had adversely affected all aspects of his life. That conviction must of course have been strengthened on receipt of Dr Shapero’s report of 23 January 2007.

107. The issue of whether a claimant can be said to have “knowledgeâ€of matters about which he has suppressed memories was dealt with by Lord Hoffmann in the case of Hoare :

“42. Mr Brown QC, who appeared for the appellant, put forward an alternative argument that, even if the test which section 14(2) applied to the injury as known to the claimant was entirely impersonal, the claimant in this case could not be said to have had knowledge of his injury. This was because, according to the evidence of the claimant, supported by an expert witness, he had “blocked out his memoryâ€, or, in another metaphor which he used in evidence, put his memories “in a box with a tightly sealed lid in the atticâ€. He was, he said, “in denialâ€about the psychological injuries which he had suffered.

43. I do not doubt the value of these explanations of the claimant’s mental processes when it comes to an assessment of

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26

whether he could reasonably have been expected to commence proceedings. But they are difficult enough concepts to apply in that context and I do not think that section 14(2) was intended to convert them into even more difficult questions of epistemology. If one asked an expert psychologist whether the claimant “reallyâ€knew about his injuries, I expect he would say that it depends on what you mean by “knowâ€. And he might go on to say that if the question was whether he “knewâ€for the purposes of the Limitation Act, it would be better to ask a lawyer. In my opinion the subsection assumes a practical and relatively unsophisticated approach to the question of knowledge …â€

108. Applying the “practical and relatively unsophisticated approach to the question of knowledgeâ€advocated by Lord Hoffmann in Hoare , it seems to me that the claimant must be taken to have “knownâ€, from the time the acts of sexual abuse were committed, the nature and extent of those acts of abuse and the immediate effects they had had upon him.

109. In deciding whether the respondent knew that he had suffered a significant injury in the sense required by section 14(2) of the 1980 Act, I take into account the nature and extent of the abuse as I have found it to be. It is of course true that the abuse resulted in no physical injury to the claimant. It was not (as I have found) penetrative. Nevertheless, its frequency, its duration (the individual “football coachingâ€in the holidays could last all day), the period of years over which it was committed and the intense feelings of violation, dread, isolation, shame and humiliation that the claimant described experiencing at the time must, if true, all have combined together to produce significant psychological effects. The fact that the claimant was aware of at least some of those effects is demonstrated by the fact that he considered Father Spencer’s behaviour of sufficient significance to mention to Dr Fry in 1996 and that he felt the need to “confrontâ€Father Spencer with it in 1999. Those effects, viewed objectively, should in my view have been recognised by a reasonable person as being sufficiently serious to justify instituting proceedings against a compliant defendant with means. In reaching this view, I bear in mind the words of Smith LJ to which I referred at paragraph 98 of this judgment. There will, I recognise, be examples of transient and relatively minor abuse which would not be characterised as having involved an injury which is “significantâ€within the meaning of the 1980 Act. Having regard to the features I have mentioned, however, I do not consider that is the case here.

110. I have found that the abuse ended when the claimant was 15 years old, more than two years before he attained his majority. I find that time began to run from the date of his majority and that the claim became statute-barred in June 1979, just less than 28 years before the commencement of proceedings.

Would it be equitable to allow the claim to proceed?

111. The final question for determination is whether, despite my finding that the claim was commenced outside the primary limitation period, it would nevertheless be equitable to allow the claim to proceed.

112. Section 33 of the 1980 Act provides:

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“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.â€

((1A) and (2) are not relevant for these purposes)

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.â€.

The claimant’s contentions on the exercise of discretion

113. On behalf of the claimant it is contended that, despite my finding that he had the necessary knowledge at all times during the period since the abuse, I should nevertheless give considerable weight to his reasons for delaying in acting upon that knowledge. Mr

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Seabrook points out that it is clear that the claimant had for many years managed to “block outâ€or suppress the most painful memories of abuse and the emotions surrounding them. He had been unable to treat the abuse lightly and indeed did not consciously recognise it as “sexual abuseâ€at all. This was no doubt to some extent as a result of his ambivalent feelings towards Father Spencer and of Father Spencer’s manipulation and “groomingâ€of him. It was not until April 2005, when the memories and emotions came flooding back, that he realised the full nature and extent of the abuse and its effects upon him. Once he had come to that realisation, he had sought legal and medical advice promptly with a view to commencing proceedings.

114. Mr Seabrook argued that the evidence as to the abuse was not materially less cogent than if the action had been brought within the primary limitation period, so that a fair trial was still possible. He repeated his submission that the evidence of the claimant, supported by that of his witnesses, was overwhelming. There was also the confirmation afforded by Father Spencer’s letter of 24 June 2000. It was of course true that Father Spencer was not available to give evidence. However, Mr Seabrook suggested that, even had Father Spencer been available and denied the allegations, in the face of the evidence give by the claimant and his witnesses, it was inconceivable that he would have been believed.

115. Mr Seabrook argued that, despite the long period that had elapsed since the abuse occurred, the task of the court in assessing the psychological effects of the abuse would be easier than it would have been when the claimant was still a young man of 21 or so. At that time, his future career path would have been entirely unknown and the problems which he was to suffer within his life would not have been evident.

The second defendants’ contentions on the exercise of discretion

116. Miss Thirwall argued that the second defendants would be seriously prejudiced if the action were allowed to proceed. Thirty five years had passed between the start of the alleged abuse and the commencement of proceedings. The claimant would have had better recollection of the events in question thirty years ago. Father Spencer would have been alive and may well have challenged the claimant’s evidence about the happening, nature, frequency and/or duration of the abuse. Father Edwards would have been fit to give evidence. Jimmy Webster, the groundsman who was alleged to have come onto the scene during one of Father Spencer’s filming sessions, would have been alive and available to give evidence. Miss Thirwall referred to the witness statements of Mr Jeremy Davies and Ms Sarah Murray-Smith, solicitors who have had conduct of the case on behalf of the first and second defendants. They detail the difficulties they had experienced in investigating the claim, difficulties largely caused by the fact that many former members of the staff at the College had died, were unfit to provide evidence or could not be traced. Miss Thirwall submitted that the evidence of those witnesses would have provided an important check on the claimant’s credibility which, as I have said, she submitted was poor.

117. Miss Thirwall submitted also that the length of time which had elapsed would make it difficult, if not impossible, for the court to ascertain the effects if any, of the abuse. Even if the court were to be satisfied that the claimant had suffered from psychiatric problems over the years, the task of deciding to what extent, if any, the abuse caused, or contributed to, those problems, would be extremely difficult. Miss Thirwall submitted that this was particularly so in the light of the various inconsistencies in the claimant’s evidence.

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Conclusions on the exercise of discretion

118. The question that I must address is whether it would be equitable to allow the action to proceed, despite my findings as to date of knowledge. I remind myself that the burden of showing that it would be equitable to do so lies on the claimant and that it is a heavy burden. With those matters in mind, I shall address separately the consideration set out in section 33(3) of the 1980 Act.

119. Section 33(3)(a) requires the court to have regard to the length of, and the reason for, the delay on the part the part of the claimant. The length of the delay in this case is very substantial indeed; about 33 years from the end of the abuse to the commencement of proceedings. I must give weight to that fact. As to the reasons for the delay, I have already found that, as is not uncommon in cases of sexual abuse, the complainant had to some extent suppressed his memories of the nature and the extent of the abuse. More particularly, however, he had contrived to suppress many of the emotions associated with the abuse. His attitude was to make light of the incidents of abuse which he did recollect and to view Father Spencer with amusement and pity – even some affection. His state of denial was such that, in 1991, he invited Father Spencer to officiate at his wedding and, in 1996, he denied to Dr Fry that he had been sexually abused by Father Spencer. It seems inconceivable that the claimant would have done either of those things if he had consciously recognised prior to April 2005 that Father Spencer had sexually abused him.

120. It was not until April 2005 that the claimant recognised – or acknowledged to himself – Father Spencer’s behaviour for what it was: that is, serious sexual abuse, which had both immediate psychological effects on him and also, he believes, long-term psychiatric effects. There is no doubt in my mind that if, at any time over the previous three decades, the claimant had consciously been aware of the extent of the effects (whether immediate or long-term) of the abuse, he would have considered taking legal action. He was, between the ages of 24 and 39 years a litigation solicitor and has a somewhat combative personality. He would have been in the best possible position to seek appropriate advice if he had deemed it necessary to do so. I find that the reason that he did not was not because of any conscious decision on his part to delay. Rather it was because he had not yet recognised and confronted the fact of the sexual abuse which he had undergone. In this regard, I take into account the joint view of the psychiatrists that the claimant seemed not to be aware of any ill-effects on his personality and functioning as a result of the abuse until 2005. While Professor Maden did not agree with Dr Shapero that the episode of 17 April 2005 amounted to a “cathartic realisationâ€, he did concede that, following April 2005, the claimant had suffered symptoms of depression and post-traumatic distress disorder which were partially due to the abuse.

121. Section 33(3)(b) requires me to consider the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the claimant or the defendant is or is likely to be less cogent, than if the action had been brought within the primary limitation period. In particular, I must consider the effects of the delay on the second defendants’ ability to defend the action. So far as the issue of liability is concerned, the cause of action is vicarious liability on the part of the second defendant for the sexual assaults and abuse allegedly perpetrated by Father Spencer. The issue is, therefore, far more straightforward than those which would be involved in a claim alleging systemic negligence on the part of a defendant. In the latter case, documents and oral evidence as to contemporaneous practice and procedure and supervisory regimes may well be necessary. Such evidence is unlikely to be available 30 years on.

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122. Despite the relative simplicity of the issue, however, I must consider whether the second defendants would have been in a significantly better position to establish that the allegations made by the claimant were baseless or exaggerated if the trial had taken place within a reasonable period of June 1979.

123. As judges have previously pointed out, allegations of sexual misconduct are easily made and can be difficult to refute. Complainants may have many reasons for inventing or exaggerating allegations. It is therefore necessary to exercise caution when assessing the likely cogency of a claimant’s evidence for the purposes of section 33(3)(b). However, the claimant in this case has made allegations which do not bear the hallmarks of exaggeration. This is not a case where he has “jumped on a bandwagonâ€of other similar complaints. It is difficult to see what motive he could have had for misrepresenting what occurred. Moreover, his allegations were supported to a remarkable degree by a number of his contemporaries. Many witnesses described Father Spencer’s obvious sexual interest in young boys, his habit of looking at and touching their genitals under various pretexts and his preference for the claimant. One witness actually saw Father Spencer filming the claimant. Other witnesses had been filmed themselves. One of the witnesses had, like the claimant, been invited to football training sessions at which only he was present. A most striking feature was the fact that, despite the delay that had occurred, six witnesses came forward spontaneously shortly before the trial started. Some of them were unaware when they did so of the identity of the claimant and none appeared to have any particular axe to grind. In the face of evidence such as this, the second defendants were always going to experience great difficulties in persuading a court that the claimant’s allegations were untrue or exaggerated.

124. The main source of prejudice to which the second defendants point is the death of Father Spencer and his consequent unavailability as a witness. Viewed realistically, however, it is difficult to envisage circumstances in which a denial of the abuse by Father Spencer (assuming he had denied it) would have prevailed over the evidence of the claimant and his witnesses. In particular, he could have had no plausible innocent explanation for the contents of his letter of 28 June 2000. Nor would a denial from other members of staff at the College (in addition to Father Edwards, who provided a witness statement) have been likely to be determinative. They may have been understandably reluctant to admit having any knowledge of Father Spencer’s activities. They may genuinely not have been aware of them – as Mr Malone was apparently unaware of the deeply unsatisfactory behaviour of Father Spencer which led to Father Wren’s letter requesting his removal from the College. I regard it as highly unlikely that the availability of other members of the staff of the College would have improved the second defendants’ prospects of succeeding on the issue of liability. As to documents, most of the second defendants’ documentation was still in existence and they were not able to point to any specific document(s) which were unavailable and would have been likely materially to have affected the outcome on liability.

125. It is necessary to consider also the effect of delay on the cogency of the evidence relating to the psychiatric effects of the abuse on the claimant. There is no doubt that the task of unravelling, more than 35 years after the abuse ended, what, if any, impact it has had on the claimant would be a difficult one. Having said that, there is some force in the contention made by the claimant that there would have been difficulty also (perhaps even greater difficulty) in predicting when the claimant was 21 or 22 what the effects of the abuse would be on his future life and career. The burden of proving that the abuse has had the various effects which the claimant contends on his academic achievements, personality and psychiatric health, as well as upon such matters as his ability to form

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relationships and to achieve his employment potential, would of course lie on the claimant himself. The exercise of determining causation would require a detailed scrutiny of the claimant’s past academic, employment and personal history, together with an examination of the available lay and medical evidence. It would also involve an assessment of the claimant’s reliability as a witness. These are exercises which the courts are well used to carrying out. Given the delay in this case, they would require particular care.

126. Section 33(3)(c) requires the court to consider the conduct of the defendants after the cause of action arose. The type of conduct relevant for these purposes would be any obstructive behaviour on the part of the second defendants which might have prejudiced the claimant. There was no such obstructive behaviour in this case.

127. Section 33(3)(d) requires the court to have regard to the duration of any disability of the claimant arising after the date of the accrual of the cause of action. The claimant did not achieve his majority until about two years after the end of the abuse. Thereafter the limitation period began to run in the usual way. It does not seem to me that these circumstances should have any effect on the exercise of my discretion.

128. Section 33(3)(e) and (f) require me to have regard respectively to the extent to which the claimant acted promptly and reasonably once he knew that he might have an action for damages and the steps which he took to obtain medical, legal or other advice and the nature of that advice. The claimant took no action at all until after April 2005 for the reasons I have previously referred to. It seems that, after April 2005, he acted with reasonable promptitude. He consulted solicitors some time later in 2005 and they arranged for him to see Dr Shapero in December 2005. He saw Dr Shapero again in February 2006. A letter of claim setting out full details of the claim was sent to the first defendants in June 2006.

129. Taking into account all the circumstances of the case and, in particular, the various issues set out in section 33(3) to which I have already referred, I am satisfied that the claimant has established that it would be equitable to allow the action to proceed. I take the view that, notwithstanding the delay that has occurred (through no “faultâ€on the part of the claimant), the ability of the second defendants to defend the issue of liability has not materially been affected and a fair trial of the issue of causation will be possible. To the extent that there is any prejudice in relation to the issue of causation, it is likely to operate to the detriment of the claimant since he will bear the burden of proving his loss.

130. I therefore direct that the provisions of section 11 shall not apply to this action.

A selection of newspaper articles are below.

2009 Standard [3] I asked the priest who abused me to officiate when I got married

2012 Nov 9 BBC [4] Jesuit-run college abuse victim Patrick Raggett wins damages

2012 Nov 9  [5] Solicitors Journal Former partner’s drinking and drug taking ‘not caused by sex abuse’

2016 Mar 13 Catholic Universe [6] Former Preston College student on mission to reunite school’s final class 

2012 Nov 9  Mail [7] Former city lawyer who claimed £5million damages after his ‘life was ruined’ by sexual abuse at Jesuit-run school wins £55,000 payout

2009 Mar 23 Telegraph [8] Former City lawyer claims record £5 million over alleged sex abuse at Jesuit school

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[3] 2009 Standard I asked the priest who abused me to officiate when I got married http://www.standard.co.uk/news/i-asked-the-priest-who-abused-me-to-officiate-when-i-got-married-6781069.html

[4] 2012 Nov 9 BBC Jesuit-run college abuse victim Patrick Raggett wins damages http://www.bbc.co.uk/news/uk-england-london-20267571

[5] 2012 Nov 9  Solicitors Journal Former partner’s drinking and drug taking ‘not caused by sex abuse’ https://www.solicitorsjournal.com/news/crime/persons/former-partner%E2%80%99s-drinking-and-drug-taking-%E2%80%98not-caused-sex-abuse%E2%80%99

[6] 2016 Mar 13 Catholic Universe Former Preston College student on mission to reunite school’s final class  http://www.thecatholicuniverse.com/former-preston-college-student-on-mission-to-reunite-schools-final-class-7981 jimclune@fsmail.net

[7] 2012 Nov 9  Mail Former city lawyer who claimed £5million damages after his ‘life was ruined’ by sexual abuse at Jesuit-run school wins £55,000 payout http://www.dailymail.co.uk/news/article-2230616/City-lawyer-Patrick-Raggett-wins-55k-damages-childhood-sex-abuse-Jesuit-school-Preston.html

[8] 2009 mar 23 Telegraph Former City lawyer claims record £5 million over alleged sex abuse at Jesuit school http://www.telegraph.co.uk/news/uknews/law-and-order/5038067/Former-City-lawyer-claims-record-5-million-over-alleged-sex-abuse-at-Jesuit-school.html

[9] Patrick Raggett therapist http://www.itsgoodtotalk.org.uk/therapists/in/a57735/london-west/london/patrick-raggett

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
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2 Responses to AB v The Society of Jesus Trust 1929, Preston Catholic College 5 May 2009 High Court (Jesuits)

  1. Pingback: An Index and Timeline of Court and Court of Appeal Documents on Cathy Fox Blog | cathy fox blog on child abuse

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