JXJ v The Province of Great Britain of the Institute of Brothers of the Christian Schools (“the de la Salle Brothers”)

JurisdictionEngland & Wales
JudgeMr Justice Chamberlain
Judgment Date17 July 2020
Neutral Citation[2020] EWHC 1914 (QB)
CourtQueen's Bench Division
Docket NumberCase No: QB-2018-005376
Date17 July 2020

[2020] EWHC 1914 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Chamberlain

Case No: QB-2018-005376

Between:
JXJ
Claimant
and
The Province of Great Britain of the Institute of Brothers of the Christian Schools (“the de la Salle Brothers”)
Defendant

Laura Collignon (instructed by Summit Law LLP) for the Claimant

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

Hearing dates: 17–23 June 2020

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.

Mr Justice Chamberlain Mr Justice Chamberlain

Introduction

1

There is an order preventing the disclosure of the Claimant's identity. He is therefore referred to as “JXJ”.

2

Between September 1972 (when he was 10) and September 1974 (when he was 12), JXJ attended St Ninian's School in Gartmore, Stirlingshire, Scotland (“the School”). This was an “approved” or “List D” boarding school to which juvenile offenders and others who were considered to be in need of care and protection could be sent by order of a juvenile court or the Secretary of State.

3

Legal responsibility for the management of the School lay with a board of managers appointed by the Catholic Archbishop of Glasgow. The headmaster, depute headmaster and many of the teaching staff were members of the Institute of the Brothers of the Christian Schools (“the Institute”), a monastic order founded by St Jean-Baptiste de la Salle in Rheims in 1680 and dedicated to the provision of Christian education. Its members are known as the de la Salle brothers (“the DLS brothers” or “the brothers”). The Institute operates all over the world. Organisationally, it is split into provinces. The Defendant is its Province of Great Britain or, more accurately, of Ireland, Great Britain and Malta.

4

During his time at the School, JXJ was repeatedly subjected to sexual assaults, some involving considerable violence, by James McKinstry, a lay member of staff who worked at the School as a gardener and night watchman. McKinstry was convicted of those assaults, and of assaults against other boys at the School, at the High Court in Edinburgh in 2003. There is no dispute that these sexual assaults took place. JXJ says that he was also physically assaulted by DLS brothers who taught at the School. These alleged assaults are not admitted.

5

JXJ's claim has three elements. He claims that the Defendant is vicariously liable for:

(a) the sexual assaults perpetrated by McKinstry;

(b) the acts and omissions of Brother Alphonsus, the headmaster of the School, in exposing JXJ to the risk of abuse and/or in failing to protect him from that abuse; and

(c) further assaults committed by Brothers Pius and Patrick and jointly by a group including Brothers Alphonsus, Patrick, Cuthbert, Pius and Benedict, together with McKinstry.

6

The Defendant accepts that the assaults of which McKinstry was convicted took place, but pleads a limitation defence and, in addition:

(a) denies that it is vicariously liable for McKinstry's assaults;

(b) accepts that it is vicariously liable for any breach of duty on the part of Brother Alphonsus but does not admit any such breach of duty; and

(c) accepts that it is vicariously liable for any physical assault committed by any of the DLS brothers, but does not admit that any of the assaults alleged took place.

The history of the proceedings and the applicable law

7

JXJ's intention to bring this claim was first notified to the Defendant on 2 July 2014. Psychiatric reports were sought from Dr Roger Kennedy (for the Claimant) and Prof. Anthony Maden (for the Defendant). A joint report by Dr Kennedy and Prof. Maden was finalised on 21 September 2017.

8

The claim was issued in June 2018. In the Particulars of Claim, reliance was placed on the general rule that parties are to be sued in the place where the Defendant is domiciled: Civil Jurisdiction and Judgments Act 1982, Sch. 4, para. 1. Although the claim could have been brought in Scotland, the place where the harmful events occurred (Sch. 4, para. 3(c)), both JXJ and the Defendant were now domiciled in England, so England was the appropriate forum. Because the events giving rise to this claim pre-date the coming into force of Regulation (EC) 864/2007 (“the Rome II Regulation”) and the Private Law ( Miscellaneous Provisions) Act 1995, it was said that the applicable law is determined by the common law choice of law rules. Under those rules, substantive matters are governed by Scots law, the lex loci delicti, subject to the rule of double actionability derived from Phillips v Eyre (1870–1) LR 6 QB 1; but procedural matters are governed by the law of England and Wales, the lex fori. The measure of damages is for these purposes a procedural matter: Harding v Wealands [2007] 2 AC 1. It was said that, because of s. 1(1) of the Foreign Limitation Periods Act 1984 (“the 1984 Act”), limitation is governed by Scots law and, in particular, ss. 17A, 17B and 17D of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”), as inserted by a recent Act of the Scottish Parliament, the Limitation (Childhood Abuse) (Scotland) Act 2017 (“the 2017 Act”).

9

In the Defence, the Defendant admitted that England is the appropriate forum; that the substantive law applicable to the claim is Scots law, subject to the rule of double actionability; that the measure of damages is governed by the law of England & Wales; and that, under the 1984 Act, limitation is governed by Scots law.

10

On 6 May 2019, Master Kay gave directions for the parties to rely on their respective experts' reports and on the joint report of Dr Kennedy and Prof. Maden. Permission was also given to the parties to rely on the report of an expert to be jointly instructed on the Scots law of limitation, David Sheldon QC. He produced his report on 9 May 2019. It deals in considerable detail with the genesis of the new Scottish limitation provisions, on which there was then no decided authority from the Scottish courts.

11

The trial was set down for hearing in a window from 15–24 June 2020. On 22 April 2020, Stewart J ordered a pre-trial review to determine the arrangements for the hearing. That took place remotely before HHJ Coe QC, sitting as a Judge of the High Court, on 6 May 2020. She ordered that the trial should proceed in the existing window, to deal with liability (including limitation) only, with issues of causation and quantum to be dealt with at a later date. She gave directions for the hearing, which was to be in court, with arrangements for certain of the witnesses who were not able to travel to court to participate remotely. At a pre-trial review in the week before the hearing, I gave further directions that the trial should proceed in open court, save that:

(a) when taking the evidence of witnesses who were not able to attend court, the hearing would take place wholly remotely, using Skype for Business; and

(b) during the other parts of the hearing certain of the Defendant's witnesses who were not able to attend could observe proceedings in court remotely, again using Skype for Business.

(Express provision is made for hearing evidence by video link (CPR r. 32.3) and for conducting hearings by video-conferencing ( CPR 32PD Annex III).)

12

During the parts of the hearing held in court, the court was open to the public and press, although no member of the public (other than the Claimant, lawyers and court staff) in fact attended. For the wholly remote parts of the hearing, members of the public and press were able to apply for access, though no one did. The remote part of the hearing was, therefore, “public” within the meaning of CPR 51Y PD para. 3.

13

At the pre-trial review, I invited counsel to produce a joint note summarising the agreed position on applicable law. On the day before the trial, I drew counsels' attention to s. 1(1)(b) and (2) of the 1984 Act and to the decision of Barling J in Deutsche Bahn v MasterCard [2018] EWHC 412 (Ch), at [155]–[158]. In order to make sense of the submissions made, it is necessary to set out the material provisions of the 1984 Act.

14

Section 1 provides insofar as material as follows:

“(1) Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter—

(a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings… and

(b) except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply.

(2) A matter falls within this subsection if it is a matter in the determination of which both the law of England and Wales and the law of some other country fall to be taken into account.”

15

Section 4(1)(a) provides that reference in the Act to the law of any country (including England and Wales) relating to limitation are to be construed as including the law relating to the extension of any limitation period.

16

Section 7(3) provides as follows:

“Nothing in this Act shall—

(a) affect any action, proceedings or arbitration commenced in England and Wales before the day appointed under subsection (2) above [1 October 1985]; or

(b) apply in relation to any matter if the limitation period which, apart from this Act, would have been applied in respect of that matter in England and Wales expired before that day.”

17

Having considered these provisions, Mr Steven Ford QC, for the Defendant, filed a note on the morning of the first day of the trial indicating a “position” contrary to...

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