Further guidance provided by Court of Appeal on the issue of limitation

The Court of Appeal handed down its ruling in the case of JL -v- (1) Archbishop Michael George Bowen (2) Scout Association [2017] EWCA Civ 82 yesterday. (http://www.bailii.org/ew/cases/EWCA/Civ/2017/82.html)

BLM acted for the second defendant, The Scout Association.

The Court held that the judge at first instance had been wrong when he disapplied the limitation period and allowed the claim to proceed. The trial judge had made factual findings about the claimant in this case, which resulted in the majority of the claimant’s claims being rejected.  The judge had failed to attach sufficient weight to the factual findings, when considering the reasons for the claimant’s delay in pursuing his claim; how long the delay had actually been; and the degree of prejudice faced by both defendants in defending the claim.

Amongst several factors referred to in the Court of Appeal judgment in allowing the appeal:

  • The claimant had been unable provide an understandable, “still less good”, reason for the delay in initiating a claim following the arrest and prosecution of the alleged abuser.
  • The overall delay in bringing the claim relating to the mid to late 80s had a profound impact on the evidence and the ability of the Archbishop and the Scouts to discharge the burden upon them to show that the alleged abuser had been wrongly convicted.
  • The fact the alleged abuser passed away before trial, in the context of a reverse burden of proof (the defendants having to prove that the claimant had consented to sexual activity), was highly prejudicial to the appellants.

Comment:

This judgment does not create new law. However, it provides further guidance on the way limitation should be approached in abuse claims – both in the courts and for solicitors assessing the merits of an individual claim.

Where a judge has heard all of claimant’s evidence and has been able consider the full circumstances of the claimant’s case, they cannot then ignore that evidence when deciding whether to disapply the limitation period. In this particular case,  Lewison LJ stated that:

“there was… an ‘Alice in Wonderland’ quality to the court disapplying the limitation period on the basis of a view of facts which was actually far removed from the facts that it had determined.”


For any questions you may have relating to this decision, please contact michael.pether@blmlaw.com or james.chambers@blmlaw.com

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