London Borough of Haringey v FZO
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Simon,Lady Justice Nicola Davies |
| Judgment Date | 18 February 2020 |
| Neutral Citation | [2020] EWCA Civ 180 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2019/1418 |
| Date | 18 February 2020 |
[2020] EWCA Civ 180
Lord Justice McCombe
Lord Justice Simon
and
Lady Justice Nicola Davies
Case No: B3/2019/1418
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION
Mrs Justice Cutts DBE
HQ16P02040
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Kent QC and Nicholas Fewtrell (instructed by Keoghs LLP) for the Appellant
Robert Seabrook QC and Justin Levinson (instructed by Bolt Burdon Kemp) for the Respondent
Hearing dates: 17–19 December 2019
Approved Judgment
Introduction
This is the appeal of the London Borough of Haringey (“the Appellant”) (the Second Defendant to the proceedings) from the order of 23 May 2019 of Cutts J.
The judge ordered that there be judgment against the Appellant and a Mr Andrew Adams (“the First Defendant”) in favour of FZO (“the Respondent”) in the sum of £1,112,390.70, with interest under s.35A of the Senior Courts Act 1981 in the agreed sum of £9,546.91. Permission to appeal was granted to the Appellant by my order of 7 August 2019. The First Defendant has not sought to appeal.
By a further order of 7 August 2019, I directed that the Respondent's name be anonymised in court documents by the initials, FZO. I made similar orders in respect of the identities of two witnesses, FZOR and FZOJ respectively. I also gave ancillary directions restricting access to court documents and imposed reporting restrictions in respect of information that might lead to the identification of those persons. The orders made in this second order continued arrangements to similar effect that had subsisted throughout the proceedings in the High Court. Interested parties are directed to the full terms of that order for their full effect.
Background and Issues at Trial
The claims brought by the Respondent against the First Defendant and the Appellant, the essential background facts, in outline, and the issues that were tried in the High Court are set out in paragraphs 2 to 8 of the judge's first judgment (on liability and causation), delivered on 20 December 2018 ( [2018] EWHC 3584 (QB)). I can do no better than to quote those paragraphs:
“2. The claimant claims damages for personal injury, loss and damage consequent upon sexual abuse and assaults committed upon him by the first defendant, a teacher at Highgate Wood School, Hornsey, London, where he was a pupil from 1980 until 1982 and then again for a short time in 1983/4. It is alleged that these assaults continued after he left the school up until and including 1988. The first defendant was employed at all material times as a teacher of physical education by the second defendant. Proceedings are brought against the second defendant on the basis that the London Borough of Haringey is vicariously liable for his actions.
3. On 13th March 2014 at the Crown Court sitting at Wood Green the first defendant pleaded guilty to two counts of indecent assault (one count relating to multiple incidents of kissing and touching between February and September 1980 when the claimant was aged 13 years and the other to a specific occasion when the claimant was required to perform oral sex upon the first defendant at a mosque between 1980 and 1982 when he was aged 14 or 15 years) and two counts of buggery (one count relating to multiple incidents between 1981 and 1982 when the claimant was aged 14 years and a similar count between 1981 and 1982 when the claimant was aged 15 years). On 18th July 2014 he was sentenced to a term of 12 years' imprisonment, later reduced to 8 years' imprisonment by the Court of Appeal, Criminal Division. He has recently been released on licence, having served half of his term.
4. A letter before claim was sent to the second defendant on the 10th August 2015. This defendant agreed to a limitation freeze on 13th November 2015. The proceedings were commenced against both defendants on 9th June 2016. It is the claimant's case that shortly upon his arrival at the school he was raped by another man named John Paul Monteil. Badly affected by this and unable to turn to his parents he confided in the first defendant who had encouraged him so to do. The first defendant told him that this meant that he, the claimant, was gay and that if this became known people would not understand and dislike him and his parents would throw him out of the family home. By contrast he, the first defendant, would understand, like him and be his friend. By this means it is alleged that the first defendant groomed and manipulated the claimant into sexual activity with him which included the anal rape of him almost from the start. There then continued frequent sexual activity between them until the claimant was about 21 years with very occasional contact thereafter. The claimant asserts that he has suffered complex post-traumatic stress disorder as a result of the abuse.
5. The first defendant admits that he had “sexual relations” with the claimant from about September 1980, that such activity constituted an assault and that it was abusive by reason of the claimant's age and his inability to consent to the same. The sexual contact is admitted to have been regular but not daily. There is some dispute as to the precise activity but the first defendant admits raping the claimant. He makes no admissions as to causation or loss. He raises the limitation defence.
6. The second defendant accepts vicarious liability for the first defendant's assaults while the claimant was first at the school between 1980 and 1982 but not thereafter. It asserts that after the claimant left the school there is clear evidence that he was consenting to the activity. It makes no admissions as to causation or loss. It too raises the limitation defence.
7. By notice dated 4th April 2017 the second defendant, should it be found liable to pay damages and/or costs to the claimant, claims indemnity or contribution from the first defendant. This is accepted by the first defendant by letter dated 28th June 2017.
8. It is agreed by the parties that the principal issues I am required to determine are these:
i) Should the discretion afforded by Section 33 1 of the Limitation Act 1980 to disapply the limitation period be exercised in favour of the claimant?
ii) What was the nature and extent of the sexual abuse and assaults perpetrated against the claimant? Precise findings are unnecessary.
iii) Did the claimant give a valid consent to the sexual activity after he left the school up until 1988?
iv) To the extent that he could not be said to be consenting is the second defendant vicariously liable for the assaults which occurred after the claimant ceased to be a pupil at the school up until 1988?
v) What is the causation and effect of the claimant's ill-health?
vi) What is the level of damages to which the claimant is entitled?”
Quantum of damage (the judge's issue vi)) was determined in a further judgment delivered by the judge on 23 May 2019, leading to judgment being entered in favour of the Respondent in the sum that I have mentioned.
Grounds of Appeal
The appeal is brought upon five grounds as follows (quoting the Grounds of Appeal document, with the Appellant there being referred to as “the Second Defendant”):
“ Section 33 of the Limitation Act 1980
1. The learned judge misdirected herself as to the correct application of section 33 of the Limitation Act 1980.
2. The learned judge failed, contrary to evidence, to conclude that the Second Defendant was exposed to the real possibility of significant prejudice.
Consent
3. The learned judge was wrong in law and in fact to conclude that the Claimant did not consent to the sexual activity with the First Defendant between 1982 and 1988.
Vicarious Liability
4. The learned judge was wrong in law to hold that the Second Defendant was vicariously liable for any assault by the First Defendant after the Claimant first left Highgate Wood School in 1982.
Causation
5. The learned judge's findings on diagnosis and causation were not supported by the evidence and were not adequately explained.”
Clearly this is a case where the claims were brought well outside the primary limitation period applicable in respect of personal injury caused by assault. That primary period is 3 years from the date of knowledge of injury on the part of the person assaulted: Limitation Act 1980 s.11(4). The Respondent was a minor when first assaulted and for some time thereafter. He attained majority on 13 September 1984. By s.28(1) of the 1980 Act, the relevant period of three years, in respect of assaults prior to the Respondent's majority, began on that date and expired on 13 September 1987. For assaults after the Respondent's 18 th birthday, the limitation period was 3 years from the date of each assault. As the judge noted, therefore, the claim was brought between 25 and 30 years after the expiry of the primary limitation period in respect of injury caused by the assaults in issue.
The Facts in Summary
The judge's first judgment is a long and careful one of 345 paragraphs and 78 pages. It is necessary to say only a little more about the facts for the purposes of the appeal to provide an overview of the evidence. I begin with the Respondent's account, which was largely accepted by the judge. The Appellant criticises the judge for her approach to issues of credibility between the Respondent and the First Defendant and her approach to the findings of fact in the context of considering whether the limitation period should be disapplied. I do not forget that important question on the appeal and return to it later.
The Respondent was born on 13 September 1966 and is now, therefore, 53 years old. He grew up in north London with his parents and older siblings. One of those siblings was a sister, FZOJ, who gave evidence before the...
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