Sexual abuse overseas and limitation

As the IICSA confirms the initial hearing dates for the first public hearings which form part of the investigation in to the Protection of Children Outside of the UK, the High Court has handed down a judgment which is linked to this issue as it addresses limitation when abuse has occurred overseas.

In the case of KXL and others[1] the High Court rejected the claims and the claimants’ contentions that the Foreign Limitation Provisions Act 1984 (FLPA) conflicts with public policy and/or causes undue hardship to claimants because there is no discretionary power to extend the time limit in a historical abuse claim.

The three claimants issued proceedings in the High Court in July 2015 claiming damages for personal injury caused by sexual abuse and assaults by Fr Murphy (D1). They alleged that at the time of the assaults, D1 was under the direction and control of The Society of Missionaries of Africa (also known as the White Fathers) (D2), so as to make them vicariously liable for his acts.  Although the alleged abuse occurred in Uganda, the defendants (subject to a dispute regarding the correct manifestation of D2) are both domiciled within the English jurisdiction.  Thus the English court had jurisdiction to hear the claim.

It was common ground between the parties that the applicable law is the law of Uganda. Further to S.1 FLPA the issue of limitation fell to be determined under the Ugandan Limitation Act 1959.   Under that Act, the limitation period for claims founded in tort is three years from the date when the cause of action arose.   In respect of a minor, the limitation period is three years from the date the person ceases to be under that disability.

The claimants accepted that on the face of it, the claims were statute barred. However, they argued that under S.2  FLPA the application of Ugandan law on limitation could be disapplied by the court if the judge found that such application was contrary to public policy and/or would cause undue hardship to the claimants.  If the judge made such a finding, the Limitation Act 1980 would apply instead and the judge would be able to consider whether to exercise discretion under S.33.

The defendants contended that the limitation period is absolute under Ugandan law. There is no reference to date of knowledge, and there is no provision for extension of the time limit under any circumstances. Once limitation expires, the cause of action is extinguished. Taking into account the claimants’ dates of birth and dates of alleged abuse, limitation had expired in 2006, 2007 and 2011 respectively.

In support of their argument the claimants submitted that in certain circumstances under criminal law, D1 could have been tried in the UK for offences overseas as if he had committed them here. It was submitted that it is against public policy not to provide a civil remedy on the same terms, as if the assaults had been carried out in the UK. The judge was also invited to consider the Scottish Parliament Bill abolishing limitation in such civil claims.  However, the judge rejected the claimants’ submissions as bold and erroneous. He reiterated that it is wrong to treat a foreign limitation period as contrary to English public policy simply because it is less generous than the comparable English provision and does not contain an “escape clause” such as S.33.  The judge commented that whilst the policy on limitation (including foreign limitation) may develop over time, there is no present conflict with public policy in applying Ugandan law.

In considering whether the claimants would suffer undue hardship, it was submitted that victims of sexual abuse often have more difficulty bringing the claims timeously due to the particular nature of the act and its consequences. The judge fully accepted the claimants’ evidence explaining their difficulties in bringing the claims earlier, however did not agree this led to exceptional hardship. The test “exceptional” hardship is beyond that which is inevitable, and could not be met in this case. It is a high threshold and there is no consideration of balancing of prejudice to the parties. It is of note that the judge accepted evidence from D2, that the claimants may have an alternative remedy to the Ugandan Human Rights Commission, which is able to investigate alleged violations of human rights, and then award compensation and require apologies.

Accordingly the judge found that applying the Ugandan Limitation Act was not contrary to English public policy, nor would it cause undue hardship to the claimants.

With a growing number of civil claims, for the effect of abuse which has occurred not just in the UK but worldwide, this is undoubtedly an issue which the IICSA may wish to address not just in its investigation overseas but also in its accountability and reparations investigation. However the challenges to accommodating changes to primary legislation in England & Wales will be significant and it may be a step too far to also look to change how legislation addresses such worldwide challenges as faced in this case.

[1] KXL (1)  NXR (2)  MXD (3) v MURPHY (1) & THE SOCIETY OF MISSIONARIES OF AFRICA (“THE WHITE FATHERS”) (2) [2016] EWHC 3102 (QB)


wright_s-temporary Authored by Sarah Wright, Associate, BLM

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