1. KXL and Others v 1. Nicholas Murphy and Another
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Wilkie |
| Judgment Date | 02 December 2016 |
| Neutral Citation | [2016] EWHC 3102 (QB) |
| Docket Number | Case No: HQ15PO2953 |
| Court | Queen's Bench Division |
| Date | 02 December 2016 |
[2016] EWHC 3102 (QB)
Mr Justice Wilkie
Case No: HQ15PO2953
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Gerard McDermott QC and Justin Levinson (instructed by Hugh James) for the Claimants
Laura Johnson (instructed by DWFM Beckman) for the 1 st Defendant and John Ross QC and Matthew Chapman (instructed by Hunters) for the 2 nd Defendant
Hearing dates: 28 and 29 November 2016
Introduction
This is the trial of a preliminary issue ordered by Master Leslie on 15 th January 2016 in the terms of paragraph 2 of that order:
"Whether, it being common ground that Ugandan law is the applicable governing law, the application of section 1 of the Foreign Limitation Periods Act 1984 would conflict with public policy and / or would cause undue hardship to the claimants within the meaning of section 2(1) and 2(2) of the Foreign Limitation Periods Act 1984?"
The Proceedings and Relevant Pleadings
The three claimants issued their claims against the two defendants on 2 nd July 2015 claiming damages for personal injury caused as a result of acts of sexual abuse and assaults allegedly committed by the first defendant on the claimants and whilst the first defendant was subject to the second defendant's direction and control so as to make the second defendant vicariously liable for those acts.
The value of the claims is said to be more than £15,000, but not more than £50,000, of which at least £1,000 relates to personal injury and, accordingly, is a suitable case for issue in the High Court.
The particulars of claim state that the second defendant is a charity registered in England and Wales, being a Roman Catholic Missionary Society of priests and religious brothers engaged in various activities including missionary and pastoral work with disadvantaged youths in Africa and promoting their Catholic education.
They contend that at all material times the first defendant, a religious brother, was a member of the second defendant or its religious order and was employed or used by the second defendant as such, being in the service of the second defendant. It is said he was subject to their direction and control.
It sets out briefly the circumstance in which, it is said, the first defendant was under the direction and control of the second defendant sufficient to make the second defendant vicariously liable for the acts of the first defendant.
The second defendant, by its defence, takes issue with the factual and legal bases of those assertions. In its Rejoinder it takes issue with whether it has been properly joined as the appropriate manifestation of the Mission to be a defendant in these proceedings. Those issues are not the subject of this preliminary issue.
The first claimant's claim is set out, in summary form, in paragraph 7:
"The first claimant was born on 13 th December 1985. She was a member of Banyangabo in Hoima between about 1995 and 1996. She was sexually abused and assaulted by the first defendant whilst engaged in Banyangabo business or activities incidental thereto on several occasions. The sexual abuse and assaults comprised the first defendant hitting the first claimant's bare buttocks with his hands and implements, including a metal chain, which has left permanent marks on the first claimant's buttocks."
The second claimant's claim is summarised in paragraph 8:
"The second claimant was born on 6 th March 1986. He was a member of Xavarians in Kasambya between about 1999 and 2004. He was sexually abused and assaulted by the first defendant whilst engaged in Xavarian business or activities incidental thereto on about four occasions. The sexual abuse and assaults comprised the first defendant hitting the second claimant's bare buttocks with his hands and implements including a metal ruler and wooden hairbrush. On one occasion, in about 2000, the second claimant was taken to the first defendant's bedroom where his trousers and underpants were removed. The first defendant also took a girl, aged about 14, to his bedroom and pulled up her dress and removed her underwear. Both children were made to bend over the first defendant's bed as he sat between them and hit and touched their buttocks and then gave them sweets and dismissed them."
The third claimant's claim is summarised in paragraph 9:
"The third claimant was born on 30 th November 1990. He was a member of Xavarians in Kasambya between about 1999 and 2002. He was sexually abused and assaulted by the first defendant whilst engaged in Xavarian business or activities incidental thereto on about three occasions. The sexual abuse and assaults comprised the first defendant hitting the third claimant's bare buttocks with his hands and a wooden broom handle."
The particulars of claim state that, by reason of the matters complained of, the claimants have suffered pain, injury, humiliation and hurt to their feelings, and have sustained loss and damage. The particulars of injury assert unhappiness, pain and psychiatric difficulties as a result of the sexual abuse and assault by the first defendant, details being set out in the medical report of Dr J. O'Neill, Consultant Psychiatrist, dated 1 st June 2015, in respect of each of the three claimants.
Particulars of special damage are pleaded in respect of each of the claimants as 15–20 one hour sessions of cognitive behavioural based psychological therapy at £100 per hour, totalling, in each case, a maximum £2,000.
The first defendant's defence sets out detailed complaints of failure on the part of the claimants to comply with the pre-action protocol for personal injury claims which, it is said, has caused him prejudice.
The first defendant contends that the applicable law is the law of Uganda under which the claims are statute barred. He pleads the Ugandan Limitation Act 1959 Section 3(1) of which provides that the limitation period for personal injury claims founded on tort is three years from the date on which the cause of action arose. In respect of an infant, the limitation period is three years from the date when the person ceases to be under that disability (Section 21(2)). A person ceases to be an infant at the age of 18 (Articles 31(1) and 59(1) of the Constitution of the Republic of Uganda, and Section 2 of the Children Act TAP59 of the Laws of Uganda).
It is contended that the limitation period is absolute in Ugandan law. There is no provision for extension of the limitation period on any grounds. Once limitation has expired, the cause of action is extinguished.
The second defendant also pleads that the applicable law in respect of this claim is the law of Uganda and relies on the same statutory provisions to contend that the claims are time barred.
The claimants agree that the lex causae is the law of Uganda and do not dispute the relevant legislative provisions.
The defendants rely on the undisputed facts in support of their contention that under the law of Uganda the claims are time lapsed. The first claimant was born on the 13 th December 1985 and turned 18 on 13 th December 2003. She complains of the assaults in 1995 and 1996. In those circumstances the limitation period expired on the 13 th December 2006, the proceedings were not commenced until 2 nd July 2015, they are time barred.
The second claimant was born on the 6 th March 1986, turned 18 on the 6 th March 2004. The complaints are said to have arisen between 1999 and 2004. Pursuant to the law of Uganda, the limitation period expired on the 6 th March 2007. The proceedings were not commenced until 2 nd July 2015, and are time barred.
The third claimant was born on the 30 th November 1990 and turned 18 on the 30 th November 2008. He complains of assaults between 1999 and 2002. The limitation period provided for by Ugandan law expired on 30 th November 2011. These proceedings were not commenced until the 2 nd July 2015 and are time barred.
The first defendant has not pleaded substantively to the complaints made by any of the claimants, asserting that the complaints are insufficiently pleaded and accordingly, he is unable to plead to those allegations.
The second defendant makes the same complaint about the inadequacy of the pleaded case and, in addition, disputes that it is factually or legally vicariously liable for the acts of the first defendant.
The claimants, by their Reply, accept that the law of Uganda is the applicable law and that, pursuant to the law of Uganda, the claims would be conclusively time barred, but for the fact that, it is contended that, the application of the Ugandan Law of Limitation would be contrary to public policy and/or cause undue hardship to the claimants and that by reason of Section 2 of the Foreign Limitation Periods Act 1984 the Ugandan Law of Limitation should be disapplied to these claims.
For the purpose of this preliminary issue it was conceded in oral argument by the claimants that, if the Ugandan Limitation Act were disapplied, then, by default, the court should apply the Limitation Act 1980. The claimants would, on the facts, require the court to extend time pursuant to s33 of that Act. The parties were agreed that, in the event that the claimants succeeded on this preliminary point, I am not requested to deal with an application under s33. That would be for a later stage in the process.
The Claimants' Evidence
The claimants have each issued Civil Evidence Act 1995 notices relying on their witness statements on the ground that to call them from Uganda to give evidence in person would be disproportionate and the Court timetable has not provided for this. I am content to...
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