AB v Chethams School of Music

JurisdictionEngland & Wales
JudgeMr Justice Fordham
Judgment Date26 May 2021
Neutral Citation[2021] EWHC 1419 (QB)
Date26 May 2021
Docket NumberClaim No. F90MA014
CourtQueen's Bench Division

[2021] EWHC 1419 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

Before:

Mr Justice Fordham

Claim No. F90MA014

Between:
AB
Claimant
and
Chethams School of Music
Defendant

Justin Levinson (instructed by Abbey Solicitors) for the Claimant

Steven Ford QC (instructed by BLM Law) for the Defendant

Hearing dates: 22–25 March 2021

Final Judgment

Mr Justice Fordham

Introduction

Overview

1

This case is a claim for damages. The claimant (“Abigail”) spent one academic year at the defendant school (“CSM”) between September 1996 and June 1997 when she was aged 15 to 16. Abigail alleges that, during that year at CSM, she was sexually assaulted on several occasions – including incidents of sexual intercourse – by her violin teacher and guardian, Wen Zhou Li (“Mr Li”). She seeks damages consequent on personal injuries arising out of the alleged sexual assaults, on the basis that CSM is vicariously liable for the tortious conduct of Mr Li. The Court has made anonymity orders in relation to four individuals, assigning each of them initials: “AB”; “EF”, “CD” and “GH”. I was satisfied that a statutory entitlement to anonymity arose (section 1 of the Sexual Offences (Amendment) Act 1992) but that, in any event, orders for anonymity were necessary and proportionate having regard to Articles 8 and 10 ECHR. Nobody opposed anonymity and I gave liberty to apply. In this judgment I am using these names (not their real names): “Abigail” for “AB”; “Effie” for “EF”; “Candice” for “CD”; and “Ghisele” for “GH”. The parties also, rightly, invited me to change or remove other names and details to avoid problems of jigsaw identification, and in cases of individuals accused of but not convicted of offences. The names “Isabelle” and “Brian” are fictional. Having been released confidentially in draft to the parties, and revised with their assistance, all contents of this judgment are designed to be reportable without risking breach of the prohibitions.

Issues

2

As is agreed, three issues arise for consideration by the Court. Abigail's claim can succeed only if, and to the extent that, she succeeds on all three issues. The agreed issues are:

(1) The Limitation Issue: Whether the Court should exercise its disapplication discretion under section 33 of the Limitation Act 1980 (“the 1980 Act”) in Abigail's favour, the claim having been issued many years after the expiry of the applicable limitation period.

(2) The Factual Issue: Whether Mr Li sexually assaulted Abigail in the ways and in the circumstances alleged by her, or any of them (detailed findings are not necessary).

(3) The Vicarious Liability Issue: Whether CSM is vicariously liable for any sexual assaults if the Court finds they took place.

There is no issue as to consent: on the Factual Issue, CSM's case is the alleged sexual assaults did not take place; it is not CSM's case that Abigail consented to sexual activity. By the time of the trial, quantum of damages was no longer in issue. There is no issue as to causation of loss or damage. The parties agreed as follows: (i) If the section 33 discretion is exercised and if CSM is found vicariously liable for one or more incident of sexual intercourse, then an award of damages should be made in the sum of £45,000. (ii) If the section 33 discretion is exercised but if CSM is found vicariously liable only for other incidents of sexual assault, then a lower sum of damages will be appropriate which the parties will either (a) agree or (b) address in brief written submissions once the Court's findings are known.

Evidence and the Trial

3

Oral evidence was given at the trial by four witnesses. On behalf of Abigail there were Hyung Ki-Joo (“Mr Joo”), Abigail's mother and Abigail herself; on behalf of CSM there was Mr Li. Written expert reports were adduced: by Abigail from Dr Judith Freedman (a Consultant Psychiatrist, dated 18 October 2018); by CSM from Professor Anthony Maden (a Professor of Forensic Psychiatry, dated 26 July 2020); and a Joint Experts' Schedule of Areas of Agreement and Disagreement (dated 13 November 2020). Five witness statements were relied on by CSM (Qian Wu; Barbara Owen; Caroline Pether; Stephen Threlfall and Carolyn Rhind), which evidence was read. There were approximately 1,000 pages of further documents before the Court. Some documents were in a European language, with a translation. Also in evidence were videos of Abigail's 2013 police interviews with Greater Manchester Police (“GMP”). Counsel assisted the Court with thorough cross-examination of the four live witnesses and exacting scrutiny of the documentary evidence. There are two points to add:

(1) The mode of hearing was a ‘hybrid’ hearing, during the pandemic, in accordance with the parties' preference and directions of the Court. Some participants (including Counsel and Abigail) were physically present with me in the court room in Liverpool. Others participated by live-link (MS Teams): several observed from identified addresses in England and Wales; three witnesses (Mr Joo, Abigail's mother and Mr Li) gave their evidence by live-link from overseas ( CPR 32.3). The arrangements were appropriate and justified. The mode of hearing involved no prejudice to the interests of any party. The open justice principle was secured: the case and its start time were published in the cause list; the court room was open to the public (with social distancing); any person, whether associated with the parties or a member of the press or public could, by providing a specified address in England and Wales from which they would do so, obtain permission to observe the hearing remotely, as several did; the hearing was recorded.

(2) The trial began with a CPR 31.19(5) application by Abigail for inspection of documents listed in CSM's disclosure list (dated 17 March 2020), over which confidentiality had been claimed ( CPR 31.19(3)). These were minutes of 2013 and 2014 safeguarding meetings convened by Manchester City Council (“the Council”) with GMP and CSM to discuss the police investigation into allegations against Mr Li, including those made by Abigail. CSM held those documents, which were marked confidential. The Council was notified of the application and raised concerns in writing. Having seen the documents (a step which I was satisfied was appropriate: CPR 31.19(6)(a)), I next directed that the documents be placed by CSM into the hands of its solicitors and Counsel (a next step which I was satisfied was necessary and proportionate). CSM's position was that, in principle, inspection should be permitted. I ordered inspection, being satisfied (having regard in particular to the White Book 2020 commentary paragraphs 31.3.32 and 31.3.34): that it was necessary in the interests of justice to allow inspection of the documents; that the contents were relevant to the issues in the proceedings; that they mirrored GMP investigation documents in respect of which this Court had made an order for production on 17 October 2019; that third party names and initials had been redacted; that CPR 31.22 applied to restrict the uses to which the documents could be put; that inspection pursuant to the order of the Court involved no breach of data protection legislation; that securing such inspection as was necessary for the just disposal of the proceedings decisively outweighed any interest in protecting confidentiality; and that, insofar as public interest immunity was being relied on by the Council, withholding the documents was not necessary for the proper functioning of the public service and in any event the public interest in the administration of justice decisively prevailed.

Factual Overview

4

What follows in this paragraph will set the scene and help in understanding the discussion of the three issues. What follows is either uncontroversial or incapable of dispute and I find these contents as facts:

(1) Abigail was born at the end of March 1981 in another European country (“Abigail's country of origin”). She was found to be a talented violinist. She was taught the violin by Isabelle from the age of 6. Abigail's mother had the idea of Abigail auditioning for the Yehudi Menuhin School (YMS), a specialist music boarding school for school-age pupils, located in Surrey (often described as being in “London”). Abigail was offered a place at YMS as a boarding student from the age of 12 in 1993. Mr Li was her principal violin teacher there.

(2) Mr Li had been born in February 1955 and had moved to the United Kingdom in 1988 from a University teaching position in Canada. From 1988 Mr Li began teaching at YMS where he shared an on-site bungalow known as The Bothy. From 1990 Mr Li was also teaching at the Royal Northern College of Music (RNCM), at first for one day a week, then two days a week. RNCM is a specialist music college for college-age students, located in Manchester. In the early 1990s Mr Li was friends with the mother of Ghisele. In 1990 Mr Li taught Effie (aged 20) at RNCM, arising out of which Effie came to YMS and stayed at The Bothy and Mr Li later stayed at Effie's flat in Manchester. Mr Li was Brian's violin teacher at YMS 1990–1994, then at RNCM 1994–1998. Brian had started at YMS in 1988. He overlapped at YMS with Mr Joo who left YMS in 1991. In 1993 Mr Li introduced Brian to Ghisele, after which Brian and Ghisele became boyfriend and girlfriend for a time (1993/94). In 1995/96 Mr Li had a relationship with Min Yang (aged 27/28), a professional violinist who was a private student of Mr Li's.

(3) Mr Li was Abigail's violin teacher at YMS for three academic years 1993–1996, when Abigail was aged 12 to 15. During the summer of 1995, after her second year at YMS, Abigail (then aged 14) spent a month on a boat in Croatia with Isabelle and Isabelle's friends. After Abigail's return to YMS in the autumn term of 1995, Abigail's father wrote to Mr Li telling Mr Li that...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT