CD v The Catholic Child Welfare Society (Diocese of Middlesbrough) and Others
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Gosnell |
| Judgment Date | 21 December 2016 |
| Neutral Citation | [2016] EWHC 3335 (QB) |
| Docket Number | Case No: 5DW01675 |
| Court | Queen's Bench Division |
| Date | 21 December 2016 |
[2016] EWHC 3335 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Combined Court Centre, Oxford Row Leeds
His Honour Judge Gosnell
Case No: 5DW01675
Ms Kama Melly QC and Ms Susannah Johnson (instructed by Switalskis LLP) for the Claimant
Mr Michael Kent QC and Mr Nicholas Fewtrell (instructed by Hill Dickinson LLP) for the Defendants
Hearing dates: 31 st October to 21 st November 2016
The Claimant CD was born on 30 th January 1978, he is now 36 years of age. He had a difficult upbringing and social care records show he committed a number of offences before he reached the age of criminal responsibility. On 23 rd June 1989 at the age of 11 1/2 he was made the subject of a care order for offences of theft and criminal damage. He was initially placed at St Aiden's Children's Home in South Tyneside but on 4 th October 1989 he moved to St William's School in Market Weighton in the East Riding of Yorkshire where he stayed until 1994. This case is about what happened to him during his stay at that school.
St. William's School
St William's School was founded in or about 1865 as a reformatory school for boys. In 1933 pursuant to the Children and Young Persons Act and the Approved School Rules 1933 it became an Approved School. Boys could be placed or detained there for a maximum of three years up to the age of 17 if: they had been convicted of a criminal offence and received a custodial sentence; or they were found to being need of care or protection; or they were not attending school regularly. In 1973 St William's became an Assisted Community Home and thus became part of a co-ordinated planning system for children in the care of local authorities who placed such children there under care orders. The school was operated by the De La Salle Order and was situated in a rural setting near to Market Weighton including a residential facility. Various local authorities in the vicinity placed boys there where there were extensive grounds. It had classrooms, workshops, a place of worship, a swimming pool, recreational facilities and a working farm. The children were accommodated in separate group units known as houses.
The Defendants
The Defendants fall into one of two categories: firstly those connected with or representing the Roman Catholic Diocese of Middlesbrough, responsible for the management of St William's (variously referred to as the "Diocese of Middlesbrough" or the "Middlesbrough Defendants") and secondly the representatives and/ or members of a lay Catholic teaching order, the Institute of the Brothers of the Christian Schools (De La Salle), (variously referred to as the "De La Salle Institute" or the "Institute"). The Institute had a community of brothers living at St William's some of whom worked as teachers at the school alongside lay teachers. Most but not all of the alleged abusers had been members of the Institute.
The group claims
A number of former pupils at the school alleged that they had been sexually or physically abused by teachers or members of staff at the school. Proceedings were issued and a Group Litigation Order was made by His Honour Judge Hawkesworth QC on 5 th September 2006 in relation to approximately 170 Claimants. I am told there are now 249 Claimants. There were preliminary issues in the group action which substantially delayed the progress of the claims. On 3 rd November 2009 the issue of whether both sets of Defendants were potentially vicariously liable for the abuse allegedly committed by their employees, servants or agents was tried by His Honour Judge Hawkesworth QC. He found that only the Middlesbrough Defendants were potentially liable. The Claimants and the Middlesbrough Defendants appealed to the Court of Appeal and the appeal was dismissed in Various Claimants v Catholic Child Welfare Society [2010] EWCA Civ 1106. The Middlesbrough Defendants then appealed to the Supreme Court and on 21 st November 2012 the court granted the appeal and found that both the Middlesbrough Defendants and the De La Salle Institute could be held vicariously liable for the abusive acts of the Brothers even though the Institute was not technically responsible for the management of the school Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56.
The effect of this case was that the Defendants were able to agree that they would be represented by one firm of solicitors and counsel instructed by them in any subsequent trials and the court need not be concerned with the respective legal responsibilities of the various Defendants. The court and both teams of lawyers then attempted to identify suitable cases which could be tried first in order to give some guidance about the conduct of future trial. This was achieved by agreement and eight cases were chosen as lead cases to be tried in May 2015. Just before they were due to be tried it was discovered that a new police enquiry had taken place and that two of the alleged abusers James Carragher and Anthony McCallen had been charged with a large number of new offences arising from their involvement with St William's school. Understandably the Defendants applied for the trials involving these witnesses to be adjourned until the prosecution was complete as they were unlikely to give evidence with a criminal prosecution pending. They were eventually tried between October and December 2015 and both found guilty of a number of serious sexual offences against pupils at St William's. They both received substantial prison sentences. Five of the eight trials had been adjourned pending this prosecution and the individual Claimants in the other three trials discontinued just before they were due to be heard. Arrangements were then made for the remaining five lead cases to be tried of which CD's case is the second to be heard. Through no fault of his own, therefore, CD's case has been delayed by many years due to the legal complexities of this litigation.
The Claimant's case
I intend to give a summary of the facts which form the background to this case. Many of them are uncontroversial although the facts surrounding the alleged abuse are all disputed. The Claimant made two witness statements in these proceedings and I also had sight of a statement given to the police on 20 th February 2003. The following summary is taken from the Claimant's evidence together with the documents that were referred to me during the trial. At the end I will give a brief summary of the evidence called by the Defendants.
The Claimant's social services records show that he had a very troubled childhood with a recording that he suffered from encopresis from at least the age of five until his teens. His parents had separated when he was young and his mother could not cope with him and his brother who both used to truant from school. He was first caught committing offences when he was as young as four years old and there is a record of an arson offence on 21 st November 1987 when he was only 9 years of age. His first conviction before the courts was on 26 th October 1988 (aged 10 1/2) and on 23 rd June 1989 he was convicted of theft and criminal damage (setting fire to a school) and made the subject of a care order. The records appear to show that the Claimant had been in voluntary care at St Aidan's Children's Home since December 1988 although the Claimant had no real recollection of his time at St Aidan's.
The Claimant was allocated to St George's House and soon settled into the regime at St William's. Whilst he was a pupil at St William's he alleges that he was physically and sexually assaulted by Brother James Carragher ("Brother James") and physically assaulted by Mr Noel Hartnett and Mr Ray Black. There was also a rather vague allegation of what we would now term voyeurism against Father McCallen.
He alleges that the first assault against him was committed by Brother James shortly after he arrived at the school. He was swimming in the swimming pool with other pupils when he was heard to swear. Brother James called him to the shallow end, sat the Claimant on his knee and slapped him hard on the face. The Claimant threatened to report Brother James to his social worker and Brother James then threw him out of the swimming pool and he landed on his face causing a mark to appear for a few days. He alleges that Brother James physically assaulted him 20 or 30 times over the year he was Headmaster before he left the school in 1990.
The allegations against Noel Hartnett are of physical abuse only. The Claimant alleges that he was slapped or punched approximately 20 times during the early part of his stay at St William's for minor misdemeanours. He recalled one particular incident where he was walking to church on a Sunday and Mr Hartnett and his family were walking in front of them. He was heard to swear and Mr Hartnett turned round and punched him in the face, remonstrating with him for swearing in front of his family.
He alleged that Ray Black would shout and slap children but he stopped doing this after Brother James and Noel Hartnett left and the Claimant recalls getting on well with him after his conduct changed.
He alleges that Father McCallen would take the boys into The Unit and encourage them to hit each other with foam bats to get rid of aggression. He also alleges that whilst supervising the swimming pool he would take photographs of the boys in the pool.
In his first statement given in May 2007 the Claimant recalled going on holiday to Scotland with five other boys and Brother James. They stayed in a detached house in an isolated location near a lake for a week. He...
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