LXA v Mrs Cynthia Willcox as Personal Representative of the Estate of Edward Willcox, Deceased;

Hearing dates: 11 & 12 June, 22 August 2018

Introduction

The Claimants are brother and sister respectively. An order protecting their identities has been made in this case for reasons which will shortly become obvious. LXA was born on [a date in] 1964. He is now aged 54. BXL was born on [a date in] 1965. At the time of the hearing of this trial she was approaching her 53 ^rd birthday.

On 24 April 1970 the Claimants, who had effectively been abandoned by their natural parents, were placed with Mr Edward Willcox and his wife Mrs Cynthia Willcox. The Claimants were adopted by them on 9 December 1971.

LXA left the Willcox home on 30 August 1978 when he was admitted into the care of the local authority. BXL left the home when she was around the age of 16, towards the end of 1981 or beginning of 1982.

In May 2015, Mr Edward Willcox and his wife Mrs Cynthia Willcox stood trial at Southampton Crown Court.

On 28 May 2015 a jury returned guilty verdicts against Mr Willcox for offences of indecent assault, indecency with a male child and child cruelty. His victims were the Claimants. He was sentenced to four years imprisonment.

On the same day, the same jury returned guilty verdicts against Mrs Cynthia Willcox for offences of child cruelty against the Claimants. She was sentenced to 12 months imprisonment.

According to the indictment, the offences against LXA were committed between 24 April 1970 and 21 August 1978, when LXA was aged between 6 and 14. The offences against BXL were committed mainly between 22 July 1974 and 22 July 1981, when BXL was aged between 9 and 16. Count 14 of the indictment, dealing with child cruelty specifies a start date of 24 April 1970.

By these proceedings the Claimants claim damages for personal injuries and other losses arising out of the sexual and physical abuse they suffered at the hands of their adoptive parents.

The Parties and this Trial

Mr Willcox died on 10 July 2017, a few days after being released from prison. The claim continues against his estate. The Personal Representative of the estate is his widow, Mrs Willcox, who has been substituted as First Defendant. Henceforth I shall refer to Mr Willcox as EW and to Mrs Willcox as CW, and collectively as the Defendants.

The Defendants were initially represented by solicitors. By notice of change of legal representative dated 9 January 2018 CW gave notice that her solicitor had ceased to represent her and the estate of EW and she would act as a litigant in person.

She wrote to the Court on 7 May 2018. She said that she could not afford legal representation, which explains the notice of change of legal representative. She also said that she did not intend to attend the trial, but asked that her witness statement and arguments set out in the Counter-Schedules of loss be taken into account.

In the absence of CW, an interesting and important issue arises concerning the applicability of CPR 3.1A, which deals with the manner in which Judges accommodate the special needs of unrepresented litigants. It is necessary to start with CPR 39.3:

“ Failure to attend the trial

39.3 — (1) The court may proceed with a trial in the absence of a party but—

(a) if no party attends the trial, it may strike out the whole of the proceedings;

(b) if the claimant does not attend. It may strike out his claim and any defence to counterclaim; and

(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) …

(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

(4) …

(5) …”

In this case there was no question of striking out the Defence since this would have taken matters no further. The Claimants' cases on liability are overwhelming on account of the convictions mentioned above, and the claims for damages must still be proved. Thus, there must still be a hearing, albeit in the absence of CW. What, then of CPR 3.1A? So far as is relevant to the present circumstances, CPR 3.1A reads:

“ Case management — unrepresented parties

3.1A – (1) This rule applies in any proceedings where at least one party is unrepresented.

(2) [Case management]

(3) [Case management]

(4) The court must adopt such procedure at any hearing as it considers appropriate to the overriding objective.

(5) At any hearing where the court is taking evidence this may include –

(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and

(b) putting or causing to be put, to the witness such questions as appear to the court to be proper.”

Whilst it seems to me likely that it was envisaged that the unrepresented party would be present for the purpose of paragraph (5), it does not seem to me that the rule is so limited. The obligation of a Judge is to further the overriding objective, which is to deal with cases “justly and at proportionate cost” – see CPR 1.1(1). This includes “so far as practicable – (a) ensuring that the parties are on an equal footing” – see CPR 1.1(2)(a). In my judgment, these provisions taken together result in CPR 3.1A (5) being engaged even when the unrepresented party is not present.

Of course, there must be sensible limits to what a Judge can or should do. The Judge must be astute to avoid descending into the forensic arena in such a manner or to such an extent that it might appear that he has abandoned his role as an impartial arbiter. On the other hand, in seeking to put to the Claimants and their witnesses the matters properly raised by the unrepresented absent Defendants, there is little point in doing so in such a manner that the exercise is of little or no forensic value.

For an excellent analysis of the difficulties which arise in seeking to achieve and maintain this delicate balance see the appeal judgment of Hayden J in the family case of PS v BP [2018] EWHC 1987 (Fam). The facts of that case are very different to those in the case before me, and the unrepresented party was in fact present. However, the trial Judge undertook the task of putting questions on behalf of the unrepresented party. The manner in which he did so gave rise to the appeal. It is of relevance that Section 31G(6) of the Matrimonial and Family Proceedings Act 1984 is drawn in materially identical terms to CPR 3.1A(5), and regardless of the nature of the case, there ought to be no difference in the manner in which a Judge discharges his obligation to unrepresented parties. Hayden J also made valuable observations intended to assist Judges and legal professionals. Whilst they are expressly directed to issues likely to arise in certain family cases, it seems to me that they are likely to be of real value in civil cases where sexual abuse is alleged.

In my judgment, even where the unrepresented party is not present, but where it is clear the unrepresented party has indicated matters which are of concern to that party, it is proper for a Judge to explore those matters with relevant witnesses for the represented party. In this case there are relevant matters which have been raised in the Counter-Schedules of loss, the witness statement of CW and also in the letter written by her to the Court.

In one sense, it may be thought that these observations do not go any further than the right of a Judge to seek clarification of matters adduced in evidence by a Claimant in a case where the Defendant has not attended, whether represented or not. The Claimant still has to prove his case to the satisfaction of the Judge. However, there will be cases, of which this is one, where there are matters raised by the unrepresented party which go beyond matters of clarification which it would be proper for the Judge to explore on behalf of the absent unrepresented party. This is what I have attempted to do in this case, in a manner intended to achieve and maintain the delicate balance to which I have already referred.

The Evidence

I read the witness statements of the Claimants and heard oral evidence from them. I also read the statement and heard oral evidence from BXL's husband. I read the medical reports of Dr Leon Rozewicz, consultant psychiatrist, together with the Part 35 questions and replies.

I have also considered the Schedules and Counter-Schedules of loss.

On behalf of the Defendants I have read the witness statement of CW together with the attached documents and the Counter-Schedules of loss, and her letter to the court referred to above.

I have also had regard to various documents within the bundles to which reference has been made.

In making findings of fact I have had regard to all of the evidence to which I have referred.

The Convictions

The final trial indictment contained 15 counts. EW was named in all of them. CW was named in counts 12 to 15 inclusive.

Verdicts were returned against both EW and CW on 28 May 2015. There were some not guilty verdicts:

(1) Count 1: rape of BXL by EW between 22 July 1974 and 22 July 1981;

(2) Count 5: simulation of sexual intercourse on not less than five occasions by EW against BXL between 22 July 1974 and 22 July 1978;

(3) Count 13: cruelty by wilful ill-treatment of LXA in a...