BXB v Watch Tower and Bible Tract Society of Pennsylvannia
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 30 January 2020 |
| Neutral Citation | [2020] EWHC 156 (QB) |
| Date | 30 January 2020 |
| Docket Number | Case No: HQ17P02006 |
| Court | Queen's Bench Division |
[2020] EWHC 156 (QB)
Mr Justice Chamberlain
Case No: HQ17P02006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
James Counsell QC (instructed by Bolton Burdon Kemp) for the Claimant
Catherine Foster (instructed by Legal Department Watch Tower) for the First and Second Defendants
Hearing dates: 25 – 29 November & 10 December 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The events giving rise to this claim began in 1984, when the Claimant (to whom I shall refer as ‘Mrs B’ rather than ‘BXB’) and her husband (‘Mr B’) started to attend the Kingdom Hall in Barry, South Wales, the meeting place of the Barry Congregation of Jehovah's Witnesses. The Trustees of the Congregation are the Second Defendants to this claim. The First Defendant is the worldwide governing body of the Jehovah's Witnesses, which has offices in New York State. It is not necessary to consider further the relationship between the First and Second Defendants, because the First Defendant has agreed that it will satisfy any judgment against the Second. In the remainder of this Judgment, I therefore refer to ‘the Defendants’ without differentiating between them.
Certain essential facts are not in dispute. Mrs B was baptised as one of Jehovah's Witnesses in 1986. Those who are so baptised are known as ‘publishers’. Mr and Mrs B became friendly with another couple, Mark and Mary Sewell. Mark Sewell was then a ‘ministerial servant’, a member of the congregation with special responsibilities. He later became an ‘elder’, one of the spiritual leaders of the congregation. On 30 April 1990, the two couples went ‘pioneering’ (door-to-door evangelising) in Cowbridge, Glamorgan. Mark drank heavily at lunch-time. The two couples returned to the Sewells' home where, in a back room, Mark Sewell raped Mrs B.
Mrs B did not report the rape immediately. In 1991, however, she discovered that Mark Sewell had also been sexually abusing a girl aged under 14 who was related to him and was a member of the congregation (‘CXC’). At that point Mrs B reported both matters to the elders. They appointed investigators (whose identity is now disputed). The investigators interviewed Mrs B. She says that they asked her intimate and irrelevant questions, which caused her a great deal of distress. A ‘judicial committee’ consisting of elders from a nearby congregation was convened. There was a hearing at which Mrs B was asked further questions in the presence of Mark and Mary Sewell. Mark Sewell denied the allegations. The judicial committee found them not proven. Mrs B says that this was because of a Biblically derived rule which requires that allegations of serious sin which are denied must be corroborated by at least one additional witness (‘the two-witness rule’). Mark Sewell remained a member of the Congregation, but was later ‘disfellowshipped’ (i.e. expelled) for unrelated conduct. Mrs B says that the investigations conducted by the elders in the aftermath of the rape, and the experience of being questioned and disbelieved, were deeply traumatic.
It was not until decades later, long after Mrs B had ceased to be one of Jehovah's Witnesses, that Mark Sewell's offences were investigated by the police. On 2 July 2014, after a contested trial at which Mrs B had to give evidence, he was convicted of raping Mrs B and of 7 counts of indecent assault against CXC and another individual and sentenced to a total of 14 years' imprisonment.
After the rape, Mrs B suffered from several episodes of depression. In 2014, before, during and after the trial, she also suffered symptoms which have since been identified as indicative of post-traumatic stress disorder (‘PTSD’). On 8 June 2017, this claim was issued. In the Particulars of Claim, two separate heads of claim are advanced. In the first instance, Mrs B claims that the Defendants are vicariously liable for the assault and trespass (i.e. the rape) committed by Mark Sewell on 30 April 1990 (‘the vicarious liability claim’). Secondly, Mrs B claims that the Defendants are liable in negligence for the failure of the elders of the Barry Congregation and other elders appointed by them ‘adequately to investigate and to conduct a proper inquiry into BXB's allegation of rape and to take appropriate steps having done so’. In particular, Mrs B says that the Defendants had a duty to conduct the investigation in such a way as to avoid causing harm to her (‘the investigation claim’). Mrs B claims damages for the injuries she suffered and for losses of earnings which she says were consequent on her injuries.
The Defendants accept that Mark Sewell raped Mrs B. They do not accept, however, that they are vicariously liable for his tort. They also do not accept that they owed a duty of care in the conduct of the investigation or that they breached any such duty. They rely on a limitation defence and submit that it would be wrong to extend time under s. 33 of the Limitation Act 1980 (‘the 1980 Act’). They dispute the extent of the injury attributable to any breaches of duty and, in any event, deny that it can be shown to have resulted in any loss of earnings in the past or that it is likely to result in such losses in the future.
The issues are therefore these:
(a) Should time be extended under s. 33 of the 1980 Act in respect of either or both of the vicarious liability and investigation claims?
(b) Are the Defendants vicariously liable for the rape of Mrs B by Mark Sewell?
(c) In relation to the investigation claim:
(i) Did the Defendants owe Mrs B a duty of care?
(ii) If so, did the Defendants breach this duty?
(d) To what extent were the psychiatric injuries for which Mrs B seeks compensation attributable to (i) the rape and/or (ii) any breach of duty in relation to the investigation?
(e) How much should Mrs B be awarded in damages?
The witnesses who were and might have been called
Mrs B gave evidence herself. She also relied on the factual evidence of her current husband HXB and of FXC, who was an elder in the Barry Congregation and the father of CXC. Mrs B's expert evidence was given by Dr Ash Roychowdhury, a consultant forensic psychiatrist.
The Defendants relied on the evidence of Andrew Schofield, who has been an elder of the Jehovah's Witnesses for 19 years and works in the Service Department of the Britain branch office of the worldwide organisation of Jehovah's Witnesses. He was able to speak to the practices and teachings of Jehovah's Witnesses in general, though not directly to the events that took place in Mrs B's case. The Defendants also adduced evidence from Michael Jones and Brian Jones. They are not related and were both elders in the Barry Congregation. They say they were initially tasked with the investigation of Mrs B's complaints, though Mrs B denies this. Finally, the Defendant relied on the evidence of Simon Achonu, the solicitor with conduct of this litigation. He gave evidence on matters relevant to limitation. The Defendant's expert evidence was given by Prof. Anthony Maden, a consultant forensic psychiatrist and emeritus professor at Imperial College, London.
Mr Achonu identified the witnesses who were not called, but might have been had the claim been brought earlier. Thomas Brown served as presiding overseer of the Barry Congregation when Mrs B made her complaint. He died on 27 June 2017. Four other elders – FXC's father, Hugh McGinty, Barrie Jones and John Wood – had also died, the latter three at various dates between 2000 and 2014. Tony Sewell died on 7 December 2015. David Newman, who served as chairman of the judicial committee that investigated Mrs B's complaints, died on 18 January 2017. Finally, Edward Lee, who also served on the judicial committee, died on 13 November 2018.
This must be set against the evidence in the second witness statement of FXC, who was an elder in the Barry Congregation at the relevant time. He says that none of FXC's father, Hugh McGinty, Barrie Jones and John Wood would have been able to give relevant evidence because, apart from an initial meeting where Mrs B's complaints were disclosed to the body of elders, none played any part in the subsequent investigation. FXC points out that David Newman gave evidence at Mark Sewell's criminal trial in 2014 but said that he could not remember any of the events. Edward Lee, by contrast, refused to give evidence at the criminal trial, but was interviewed twice by Mr Achonu before he died. Finally, FXC notes that there is no witness statement from Arthur Taylor, who served on the judicial committee, and is still alive.
My approach to the evidence
Factual disputes about the events in Barry
As can be seen from the foregoing summary, some of the facts central to this claim are not disputed. There is no dispute that, on 30 April 1990, Mark Sewell, who was then an elder, raped Mrs B. There is also no dispute that the rape took place in Mark Sewell's home in Barry after Mr and Mrs B and Mark and Mary Sewell had been out pioneering. Much of Mrs B's account about how and why she came to be, and remained, close to Mark Sewell is, however, disputed, as is much of her account about the subsequent investigation undertaken by the elders.
Ms Catherine Foster, who appeared for the Defendants, challenged Mrs B robustly as to her recollection of events. She made clear that she was not suggesting that Mrs B was telling deliberate untruths. Her case was that Mrs B had allowed her feelings of antipathy towards Jehovah's...
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