McDonnell v Congregation of Christian Brothers Trustees and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE WARD,Lord Justice May,LORD JUSTICE MAY,Lord Justice Ward,LORD JUSTICE KAY
Judgment Date31 October 2001
Neutral Citation[2001] EWCA Civ 2095
Docket NumberNo B3/2001/0678
Date31 October 2001

[2001] EWCA Civ 2095

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ORDER OF MR JUSTICE MACKAY

Royal Courts of Justice

Strand

London WC2

Before

Lord Justice Ward

Lord Justice May

Lord Justice Kay

No B3/2001/0678

McDonnell
Appellant
and
Congregation of Christian Brothers Trustees
First Respondent
Trustees for the Charity of the Sisters of Charity of St Vincent De Paul
Second Respondent

MISS E A GUMBEL QC and MR P SADD (Instructed by Clifford Watts Compton of London) appeared on behalf of the Appellant

MR E FAULKS QC and MR A HAMMERTON (Instructed by Hill Dickinson of Liverpool) appeared on behalf of the First Respondent

MR N BAKER QC (Instructed by Ellis Wood of London) appeared on behalf of the Second Respondent

LORD JUSTICE WARD
1

This is an appeal against the order made by Mr Justice Mackay on 7th March 2001 striking out the appellant's particulars of claim and dismissing his claim against both respondents. The appeal is brought with the permission of the judge.

2

The matters alleged in the particulars of claim paint a sad and sorry picture of the life of the claimant, Peter McDonnell. He was born on 6th January 1936 so he is now 65 years old. Within a few weeks of his birth he and his twin sister were taken into the care of the London County Council. He remained in care throughout his childhood. In about 1941, when he would have been 5 years old, he was placed at St Vincent's School, Mill Hill, London. He remained as a pupil at that school until January 1947 when he was 11 years old. That school was said to be under the management, control and administration of the trustees of the charity of the Sisters of Charity of St Vincent de Paul; that may be in issue. He was then placed at St Charles's School, White Hart Lane, Tottenham and remained in secondary education until 12th May 1951 when he was 15 years old. That school was under the management of the Christian Brothers.

3

His case is that whilst at his primary school he was "subjected to a terrifying regime" of being regularly severely beaten and bullied. He alleges that when he moved to St Charles's School he was not only regularly beaten but also subjected to physical abuse by the touching of his genitals and by the Brothers masturbating in front of him. It should be emphasised that each of the defendants denies these allegations strenuously. His case is that he not only suffered immediate physical injuries at the time of these episodes of abuse but also that he developed a chronic psychiatirc injury from his experiences which had left him suffering from depression and symptoms of chronic post-traumatic stress disorder and becoming a high suicide risk. He claims damages for breach of duty and negligence on the part of each of the defendants.

4

It seems to me to be beyond argument—and Miss Gumbel QC does not contend otherwise—that his cause of action against the second defendant, the Sisters of Charity of St Vincent de Paul, for matters which he says occurred at his primary school must have accrued by January 1947 when he left there and likewise the cause of action against the first defendant, the Christian Brothers, would have crystallised by May 1951. He was at all materials times under the disability of infancy. He was a minor on 4th June 1954 when the Law Reform (Limitation of Actions) Act 1954 (the "1954 Act") came into effect. He attained his majority on his 21st birthday on 6th January 1957. If a three-year period of limitation applied to him—and I will shortly decide whether it did or not—that period would have expired on 6th January 1960 whereas if he were subject to a six-year period of limitation his claim would have become statute barred on 6th January 1963. If he is to claim any relief from the perceived harsh effects of strict periods of limitation he must look to the first relaxation of the rule effected by the Limitation Act 1963 (the "1963 Act") which came into force on 31st July 1963.

5

Not surprisingly, Mr McDonnell was blissfully ignorant of the arcane provisions of the Limitation Acts. His case is set out at paragraph 28 of the particulars of claim, and there is growing evidence to suggest that his is a fairly typical story of the suppression of the horrors he says he experienced. He pleads:

"In October and November 1997 the claimant learnt through reading newspaper articles that there was an investigation of abuse in schools run by Catholic nuns and Brothers. As a result of reading these articles he first understood that he had been part of a history of widespread abuse of children and he contacted the newspapers and then solicitors. This was the first occasion on which the claimant was able to discuss the full details of the injury he had suffered as a child. Prior to this date he had tried to suppress the detailed recollections of what had occurred to him. Further when he had tried to report abuse as a child no action had been taken and he had been punished for reporting it. Only when he learnt that the abuse had been widespread did he have the courage to make a statement to solicitors and to discuss the position with his current social worker."

6

In those circumstances he pleads that until November 1997 he did not have the requisite knowledge pursuant to Section 11 and Section 14 of the Limitation Act 1980 (the "1980 Act") to set the limitation clock running and that, accordingly, by commencing these proceedings within three years of that time, namely 9th August 2001, he is not time barred. Alternatively, he asks the court to exercise its discretion pursuant to Section 33 of the 1980 Act to allow the action to proceed in all the circumstances of the case.

7

The defendants, in addition to their denial of liability, plead that the claimant's cause of action against them is irredeemably barred by the Limitation Act 1939, no extension of the limitation period by reference to his alleged date of knowledge is possible and that the court has no discretion to disapply the primary limitation period because the Limitation Act does not apply retrospectively to this claim. Accordingly, they applied to strike it out as an abuse of process under CPR 3.4 (2) (b) and or for summary judgment against the claimant pursuant to CPR 24.2 (a) (i). Those issues were ordered to be tried before a judge of the High Court. As I have said, the defendants won the day before Mr Justice MacKay.

8

The issue in this appeal is whether or not the judge was correct to find that the defendants had an accrued limitation defence to which there is plainly no answer. It is all a matter of statutory interpretation. Therefore, it is necessary to consider the legislative framework.

9

I start with the Limitation Act 1939 (the "1939 Act"). This provided by Section 2 (1) that—

"The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:

(a) actions founded on ….. tort."

10

Section 22 extended the limitation period in cases of disability and provided that—

"If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years, ….. from the date when the person ceased to be under a disability ….."

11

That was subject to the proviso that this extended limitation period was only available to those who were infants and who, at the time when the right of action accrued, were not in custody of a parent. Because the claimant was in the care of the local authority it is common ground that he could claim the extended period provided by Section 22.

12

Because of its relevance to the crucial decision of Arnold v Central Electricity Generating Board [1988] AC 228, I should mention Section 21 which provided that no action could be brought against a public authority unless it had been commenced before the expiration of only one year from the date on which the cause of action accrued. That disparity of treatment of proceedings against public authorities and others was one reason why certain reforms were introduced by the Law Reform (Limitations of Actions etc) Act 1954 (the "1954 Act"). Section 1 repeals Section 21 of the Limitation Act 1939. The other important change was introduced by Section 2 which amended Section 2 of the 1939 Act by inserting the following proviso:

"Provided that, in the case of actions for damages for negligence, nuisance or breach of duty ….. where the damages claimed by the plaintiff ….. consist of or include damages in respect of personal injuries ….. this subsection shall have effect as if for the reference to six years there were substituted a reference to three years."

13

The consequence was, in summary, that for personal injury claims public authorities were given equality of treatment, namely the same three year period, with other defendants though in their case time was extended to three years whereas time running for other defendants was reduced to three years.

14

Section 22 of the 1939 Act was similarly amended to reduce the time extended to those under a disability from six years to three years where the claim was for damages in respect of personal injuries to that infant. The problems of transition from one regime to another were catered for by Section 7 (1) which provided as follows:

"The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at a time when it would have expired apart from the provisions of this Act or at the time when it would have expired if all the provisions of this Act had at all...

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5 cases
  • McDonnell v Congregation of Christian Brothers Trustees and Another
    • United Kingdom
    • House of Lords
    • 4 December 2003
    ...of Christian Brothers Trustees (formerly Irish Christian Brothers) and another (Respondents) Session 2003-04 on appeal from: [2001] EWCA Civ 2095 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE LORD BINGHAM OF CORNHILL My Lords, 1 The appellant seeks to recover damages against bot......
  • PR (Sri Lanka) v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 August 2011
    ...may preclude the government vis-à-vis an individual from contending to the contrary" (per Lord Steyn, McDonnell v Congregation of Christian Brothers Trustees [2004] 1 AC 1101, para 29). 27 Although his skeleton argument was directed principally to the special considerations raised by a......
  • Scottish Widows Plc V. The Commissioners For Her Majesty's Revenue And Customs Under Secton 56a Of The Taxes Management Act 1970
    • United Kingdom
    • Court of Session
    • 28 May 2010
    ...... not be taxed on the income or gains of another person, whether the Society or anyone else. There ... p Spath Holme Ltd [2001] 2 AC 349 and McDonnell v Christian Brothers Trustees [2004] 1 AC ......
  • Kimathi and Others v The Foreign and Commonwealth Office
    • United Kingdom
    • Queen's Bench Division
    • 28 March 2018
    ...... Generating Board [1988] AC 228 and McDonnell v Congregation of Christian Brothers Trustees ... faith and it does not cause prejudice to another party or other unfairness in the judicial ......
  • Request a trial to view additional results
1 books & journal articles
  • Vicarious Liability and Non‐Delegable Duty for Child Abuse in Foster Care: A Step Too Far?
    • United Kingdom
    • The Modern Law Review Nbr. 79-5, September 2016
    • 1 September 2016
    ...Child Abuse in England and Wales (Cambridge: CUP, 2007) 128.3McDonnell vCongregation of Christian Brothers Trustees [2001] EWCA 2019; [2002] CP Rep 31at [53] per War d LJ .4 D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: OUP, 1999) chs 8 and 9.5Bolam vFriern Hospi......

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