First rulings on historic abuse claims against Catholic school

Before the claims could proceed, the Courts first had to decide which of the various bodies involved in managing and teaching at the school could be held vicariously liable for any abuse. That case went all the way to the Supreme Court, which ruled (in 2012) that the Institute and those who managed the school could be sued.

According to the solicitors acting for many of the claimants, more than 250 men have come forward to allege that they were abused at St Williams so we are still at the beginning of what is likely to be a drawn-out process. However, the first three published decisions offer an indication of the Court's approach to these cases. The Claimants' names have been anonymised as AB, CD, and EF, and their claims involve allegations of sexual and physical abuse. One of the Brothers accused in all three cases – Brother James Carragher (Carragher) – was investigated by the police between 2001 and 2003 and was convicted twice for sexually abusing boys at the school, first in 2004 and then again in 2015.

In all three judgments, the Court asked the same set of questions:

1. Should the claim be allowed to proceed, given the length of time that has passed since the alleged abuse?
2. Did the abuse take place, on the balance of probability?
3. If so, what compensation should the Claimant receive?

Should the claims be allowed to proceed?

Under the Limitation Act 1980, claims of this nature must generally be brought within three years of the date on which the alleged assaults took place, though in most cases the three-year period will not begin to run until the Claimant reaches 18. However, the legislation allows a claim to be heard after the three-year period has ended if "it appears to the Court that it would be equitable to allow [it] to proceed". It is up to the claimant to show that it would be equitable to disapply the limitation period to allow a claim to proceed. There are a number of factors that the Court will take into account when deciding this issue, including::

• the length of, and reasons for, the delay;
• the effect of the delay on the cogency of the evidence;
• the extent to which the Claimant acted promptly; and
• the steps the Claimant has taken to obtain medical, legal or other expert advice.

In all three cases the Court took account of the fact that victims of abuse often suffer feelings of shame, embarrassment and self-blame which can lead them to repress memories of what happened to them and which make them reluctant to report it. Nonetheless, the Court held that it would be inequitable to allow the claims of AB and EF to proceed.

In AB's case, it was difficult for the Court to reconcile the argument that shame prevented him from bringing his case until 2005 with the fact that he made several disclosures about his abuse in earlier years, including – in 2001 – to the police. The judge found that AB did not present his argument in a very convincing way. In addition, the events complained of took place over 40 years ago, and the delay had adversely effected the cogency of the available evidence. Three of the Defendants' four witnesses had died, making it difficult for them to present a defence, and AB was unable to explain (and, in some cases, recognise) inconsistencies in his evidence.

EF's claim was brought twenty years after the primary limitation period expired. He offered little evidence to explain this delay and it was said, on his behalf, that it hadn't occurred to him that he could make a claim. The Court found that EF's argument on the delay issue fell far short of the threshold – set out in an earlier House of Lords case[1] – of showing "that [he] was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered". Turning to the question of whether the delay had affected the cogency of evidence, the Court noted that, by the time of EF's hearing, the alleged assaults had taken place over 40 years earlier. This delay had made the evidence less cogent: very little documentary evidence remained in existence, EF's memory was poor and his testimony vague, and two of the three alleged perpetrators did not even remember him.

Only in CD's case was the Court prepared to disapply the limitation period. He brought his claim just seven years after the end of the primary limitation period ended, though proceedings were delayed by a further ten years while the vicarious liability case made its way through the courts. The judge generally found CD to be a credible witness, was convinced by his explanation for the delay (that is, for psychological reasons) and found it significant that he had still not disclosed the worst incident to his wife, with whom he had a close relationship. The delay had had some effect on the cogency of the evidence: one of the accused staff members had died, and some of the others were either untraceable or too ill to give evidence. Nevertheless, the Court considered that the most serious allegation – of rape by Carragher – was unaffected. This incident would not have been documented and, although Carragher denied the allegation, neither he nor CD would have forgotten about it, and they were the only two individuals who could supply evidence. Some documentary evidence was still available in relation to CD's allegations of physical abuse, though those accusations were somewhat generic. In summary, the Court found that disapplying the limitation period would not significantly prejudice the Defendants, so the substantive claim could go ahead.

Did the abuse take place?

In all three cases, the Court found it impossible to hold that no abuse had taken place, though it recognised – in relation to some of the allegations – that educational practices that seem odd to modern eyes may have been more acceptable at the time the Claimants attended St William's.

The Court found that AB and EF had not proved their allegation, on the balance of probability. It made observations about the character and evidence of the men accused of abuse, but its conclusions were based primarily on AB's and EF's character and evidence.

Although AB's demeanour led the Court to believe that "something unfortunate" had happened to him in the past, there were too many issues that cast doubt on his credibility. For instance, there were inconsistencies in his evidence, his long history of alcohol abuse had impaired his memory, he had a number of convictions for dishonesty, and some of his allegations – for instance, that Carragher had abused him in front of other boys – were inherently implausible (and inconsistent with what was known about Carragher's pattern of offending). In concluding that the allegations were not proved, the judge said: "I am not making a finding that [AB] has concocted his allegations, only that he has failed to discharge the burden of proof..." EF made similar implausible allegations, had an extensive criminal record and a history of substance misuse, and there were inconsistencies in his evidence. His credibility was further compromised by the fact that he had failed to mention the abuse when he might have been expected to bring it up, at a time when he had already spoken about it to his solicitors. Again, the Court did not find that EF was an openly unconvincing witness, but held that he had failed to prove his case on the balance of probability.

CD made a favourable impression on the Court, notwithstanding that he, too, had convictions for offences involving dishonesty and there were some inconsistencies in his evidence. Having examined all the evidence about the rape allegation, the judge concluded: "I have ... considered the contemporaneous documents and the various inconsistencies in the Claimant's evidence. I take the view that they are either explainable due to the passage of time and the Claimant's wish to suppress the memory and avoid talking about the abuse, or are insufficiently compelling to overcome my impression of the Claimant ... as a witness of truth."

The Court found that, on the balance of probability, Carragher had raped CD, and that school staff members had slapped him several times.

Compensation

CD was awarded £14,000. This sum included £2,000 for injury to feelings and humiliation, and for the way those injured feelings were heightened by the fact that the person who raped him was supposed to be taking care of him. It also included a modest amount for the physical abuse by other staff members.

Implications?

These cases offer a helpful insight into the approach of the Courts when assessing historic abuse claims. The Defendants appear to have had little documentary evidence at their disposal and were prejudiced by the death (or other unavailability) of key witnesses. Perhaps this was inevitable given that the school closed in 1992, and that such a long stretch of time had passed between the alleged abuse and the court hearings. Particularly where documentary evidence is lacking, the credibility of witnesses will be crucial, not just when it comes to assessing whether the abuse took place but also, to some degree, when the Court is considering whether or not the limitation period should be disapplied.

It should be remembered that, in these cases, it had already been established that the Defendants would be liable for any abuse that took place. In most cases, a Claimant will need to prove that the limitation period should be disapplied, that the abuse occurred, and that it happened in circumstances in which it is fair to hold the school legally responsible.

Dealing with historic abuse allegations

We hope that this summary will be helpful for schools that are facing the prospect of defending historic abuse claims. Last April, we published a briefing on handling allegations of non-recent abuse. Although there have been some changes since last April[2], the advice there remains sound. However, please get in touch with your usual contact at the firm if you are unsure how best to resolve any potential claims against your school.

[1] A v Hoare [2008] UKHL6

[2] For instance, Keeping Children Safe in Education has been updated, and the independent inquiry into child sex abuse has suffered setbacks.

If you require further information on anything covered in this briefing please contact Ben Longworth or Rachel Holmes ([email protected]; [email protected]) or your usual contact at the firm on 020 3375 7000. Further information can be found on the Schools page of our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2017