Archbishop Michael George Bowen (1st Appellant) The Scout Association (2nd Appellant) v JL

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Burnett,Sir Ernest Ryder,Lord Justice Lewison
Judgment Date21 Feb 2017
Neutral Citation[2017] EWCA Civ 82
Docket NumberCase No: B3/2015/3660

[2017] EWCA Civ 82

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MANCHESTER COUNTY COURT

HIS HONOUR JUDGE PLATTS

1IR72777

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Sir Ernest Ryder SENIOR PRESIDENT OF TRIBUNALS

and

Lord Justice Burnett

Case No: B3/2015/3660

Linked with B3/2015/3672 & B3/2015/3672(A)

Between:
Archbishop Michael George Bowen
1st Appellant
The Scout Association
2nd Appellant
and
JL
Respondent

William Norris QC and Nicholas Fewtrell (instructed by Hill Dickinson LLP) for the 1st Appellant

Steven Ford QC and Adam Weitzman QC (instructed by BLM Solicitors) for the 2nd Appellant

Liz-Anne Gumbel QC and Justin Levinson (instructed by Slater and Gordon) for the Respondent

Hearing dates: 17 th and 18 th January 2017

Approved Judgment

Lord Justice Burnett
1

The respondent to this appeal ("JL") recovered £20,000 in general damages against the appellants following a trial in which he established that Father Anthony Laundy had assaulted him sexually between 1984 and 1987. He was between about sixteen and a half and nineteen years old. He then went to university. JL failed to establish the balance, indeed the bulk of his claim, that Fr Laundy had assaulted him sexually for the nine or ten years up to 1999 after he had completed his law degree. During that period, JL qualified as a solicitor, worked as such and then turned to acting and to business. The cause of action was in trespass to the person. Amongst the issues at trial was whether, throughout the period during which JL claimed he had been sexually assaulted, he had consented to the activities which founded his claim. His case was that he did not consent to any of the sexual touching throughout the period from when he was sixteen to when he was 31 because he had been groomed by Fr Laundy and emotionally manipulated. Judge Platts concluded that JL had consented to all sexual contact which followed his going to university but not that which preceded it. JL only saw Fr Laundy once or twice whilst he was at university, instigated by JL. Although JL was unsure whether there was any sexual contact on that (or those) occasions, the judge concluded that there probably was.

2

Both the Archbishop and the Scout Association resisted the claim on two further bases. First, they relied upon a limitation defence, the claim having been brought outside the period allowed by section 11 of the Limitation Act 1980 ("the 1980 Act") in respect of each of the individual assaults relied upon. That period is three years. Proceedings were not issued until 29 November 2011, initially against the Archbishop alone. At that stage Fr Laundy was still alive but he died on 17 April 2014. The proceedings were amended in October 2013 to join the Scout Association. The trial was in March 2015. Secondly, they each contended that they were not vicariously liable for the actions of Fr Laundy, whatever the position of the other might be. The claim was advanced for about £500,000. JL's case was that many problems he had encountered in his working and private life were the result of the assaults. That claim was rejected in its entirety by the judge.

3

The substance of the claim and the limitation issue were heard at the same time. In a reserved judgment handed down on 27 May 2015, the judge allowed the claim to proceed in respect of all allegations. Pursuant to section 33 of the 1980 Act, he disapplied the limitation period. He concluded that both the Archbishop and the Scout Association were vicariously liable for the assaults which had occurred and apportioned liability equally between the appellants pursuant to the Civil Liability (Contribution) Act 1978.

4

There are six grounds on which the Archbishop and Scout Association have permission to appeal:

(i) The judge applied the wrong test to the question of consent and, on the evidence before him, was obliged to conclude that JL had consented to the sexual activity at all material times;

(ii) The judge erred in his approach to the credibility of JL and, whilst recognising his unreliability in many respects, should have rejected his account of events wholesale;

(iii) In the light of a letter written by JL to the judge after the trial, but after he had completed the draft judgment, in which JL accepted that an aspect of his evidence on oath was not true, the judge should have acceded to the request of the appellants to be allowed to cross-examine JL further;

(iv) The judge erred in concluding that the appellants were vicariously liable for the actions of Fr Laundy;

(v) The judge was wrong to disapply the primary limitation period;

(vi) On behalf of the Scout Association alone, the judge was wrong to apportion liability equally between the appellants.

5

For reasons which I shall explain, I have come to the conclusion that the judge was wrong to disapply the primary limitation period in this case with the consequence that the claim should have been dismissed. I would allow the appeal on that basis and, for my part, do not consider that it would be appropriate to examine the balance of the grounds of appeal.

The facts in outline

6

Fr Laundy was a catholic priest attached to the Archdiocese of Southwark and also the chaplain of the 9 th Wimbledon Scout Group. Archbishop Bowen was a nominal defendant, having been in post as Archbishop of Southwark at the material times. Fr Laundy was born in 1941 and educated by the Jesuits at Wimbledon College. The Scout Group was associated with Wimbledon College. He was a member of the Scout Group as a boy and continued his association into adulthood. After his ordination, he served as chaplain to the Scout Group between 1966 and 1996. JL was born on 23 December 1967. He became a cub scout when he was seven or eight years old. In due course he became a scout and then a venture scout. He came into contact with Fr Laundy through the scouts and became close to him emotionally in a context that included, as the judge accepted, some difficulties in his relationship with his own father.

7

The claim contained no allegation of sexual assault before an event which occurred when JL was approaching seventeen. JL and Fr Laundy were together frequently at scout meetings and also during camps. Until 1984 Fr Laundy was the diocesan director of vocations and lived in Purley. From time to time, JL and other scouts visited him at his home there. Meetings connected with the scouts were sometimes held and boys, including JL, would occasionally stay overnight. In 1984 Fr Laundy was appointed parish priest at St Winifred's Church, Kew. JL's family did not live in his parish and were never Fr Laundy's parishioners. His parents trusted Fr Laundy completely. They had known him for years and were relaxed about their son occasionally staying at the presbytery. The judge accepted that JL helped Fr Laundy with the parish magazine and also carried out chores for which he was paid.

8

JL's account of the first incident, which the judge accepted, was that he had gone to bed in the presbytery when Fr Laundy came into his room wearing a dressing gown. He got into the single bed occupied by JL. The priest touched JL's genitals and masturbated him. He asked JL to reciprocate and attempted to put JL's hand on his penis. JL refused to do so. This behaviour was repeated on an unspecified number of occasions until JL went to University in September 1987. JL's estimate was that he stayed with Fr Laundy perhaps twice a month. On each occasion the priest would come to his room. He would allow the priest to masturbate him, but he refused to reciprocate. The issue on consent during this period was whether, taking JL's emotional dependency into account (in particular whether Fr Laundy was manipulating him emotionally) the apparent consent to the sexual touching was real. In short, was the apparent consent free consent?

9

JL visited Fr Laundy one or twice while he was at university. Following his graduation JL returned to London and re-established contact with Fr Laundy. They were to all outside observers very close friends. JL qualified as a solicitor in 1992, secured a training contract and in due course a position with a prestigious firm of solicitors in London. He met and fell in love with a woman whom he married in 1994. They asked Fr Laundy to officiate at their wedding. JL and his wife had a child in 1997. By then JL had given up being a solicitor. He undertook various jobs and retrained. At about this time the marriage failed. The couple eventually divorced in 1999.

10

In August 1999 Fr Laundy was arrested in connection with an allegation of sexual assault concerning another boy, who was sixteen at the time of the incident.

11

Throughout the period between JL's return to London and Fr Laundy's arrest, he and JL had conducted a sexual relationship described by JL as being of the same nature as had occurred in the years before he went to university. Following his arrest, Fr Laundy immediately got in touch with JL to tell him of what had occurred. JL explained that Fr Laundy was concerned to know whether he had damaged JL in any way. He was reassured by JL that he had not. But the news came as a blow to JL. He had believed that he was special to Fr Laundy and that he was the only person with whom the priest had had sexual contact. JL spoke to his ex-wife about what Fr Laundy had told him and also said to her that there had been sexual contact between the two of them before he went to university. He said nothing of more recent events. JL did not want to go to the police but his ex-wife made contact with them as a result of what she had been told. It was in those circumstances that JL made three statements to the police on 8 December 1999, 27 January 2000 and 12 April 2000. The second statement was prompted by material found by the police when searching Fr Laundy's home. There were recent...

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