Rachel Catherine Ellam v George Ellam
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Lewison,Lord Justice Pitchford |
| Judgment Date | 26 March 2015 |
| Neutral Citation | [2015] EWCA Civ 287 |
| Docket Number | Case No: B3/2014/1294 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 2015 |
[2015] EWCA Civ 287
Lord Justice Pitchford
Lord Justice Lewison
and
Lord Justice McCombe
Case No: B3/2014/1294
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
OXFORD DISTRICT REGISTRY
His Honour Judge Charles Harris QC
2YM11149
Royal Courts of Justice
Strand, London, WC2A 2LL
Elizabeth Gumbel QC and Sydney Chawatama (instructed by Truemans) for the Appellant
Susan Rodway QC (instructed by Horne Engall & Freeman LLP) for the Respondent
Hearing date: 12 March 2015
(A) Introduction
This is an appeal from the judgment and order of 3 April 2014 (sealed on 15 April 2014) of His Honour Judge Harris QC (sitting as a Deputy Judge of the High Court) whereby the judge gave judgment for the Respondent Defendant ("the defendant") on a preliminary issue of the limitation defence raised in the action. The judge dismissed the action with costs having refused to exercise the court's discretion, conferred by section 33 of the Limitation Act 19801, to order that the provisions of section 11 of the Act should not apply. The appeal is brought with permission granted by me, by order of 25 July 2014 (sealed on 7 August 2014), the trial judge having refused permission.
(B) Background Facts
The claimant is the defendant's daughter. She was born on 8 June 1968. She is now, therefore, 46 years old. In the action she claimed damages for personal injury alleged to have been inflicted upon her as a result of persistent sexual abuse committed against her by the defendant from about 1974 (when she was 6) and 1982 (when she was 14). The claimant is the second child of five born to the defendant and the claimant's mother. The eldest child was a boy, about a year older than the claimant. There followed a sister, some three years younger, then a brother, born much later and about 11 years younger than the claimant, and finally a daughter younger still.
The family originally lived in the Oxford area of England, but in 1974 they emigrated to Canada where the defendant (a medical practitioner) had obtained a post as medical director of a hospital in Quebec province.
The claimant alleges that the abuse began when she was aged about six. The Particulars of Claim identify four specific occasions upon which abuse occurred and state that such acts were regularly repeated. It is alleged that the defendant would get into bed with the claimant, would touch her vagina and kiss her on the mouth. This sort of thing happened, it is said, at least once a week. It is further alleged that the defendant "would always put her hands on his penis which was erect every time she had to sit behind him". It is further alleged that the defendant threatened her with full intercourse, which however never occurred but made her frightened.
The Defence in the action denies all the allegations of sexual abuse. Not surprisingly, in view of the passage of time, it is pleaded that the action is statute barred.
It appears that the marriage between the defendant and the claimant's mother was a volatile one. There is said to have been frequent domestic violence. The situation was such that in 1979, according to the claimant, the mother sent her and her siblings back to England (without the defendant's knowledge) to live with her sister and her husband in Oxfordshire. After the return to England, the claimant told her aunt that the defendant had abused her. Documents on the social services files suggest that this was in late September 1979. The claimant wrote a manuscript note about it at the time, a copy of which is in our bundles. She was also directed to a Health Visitor by
her mother. Following this, a social worker was assigned to the case. He was a Mr F.R. Wood (known as "Tim Wood"). A case conference concerning the family was held on 1 November 1979, when it was decided not to take formal steps in respect of any of the children (owing principally it seems to the defendant's absence in Canada), although it was suggested that the mother be approached for her consent to the children being seen by a child psychiatrist. This proposed consultation did not occur for some timeThe defendant had returned from Canada by February 1980, but relations between the defendant and his wife appear to have remained uncertain and volatile. The children were seen by a Registrar Child Psychiatrist in late February 1980 who reported at length, but found with regard to the claimant that "…there was no evidence of any serious damage having been done as a result of the incidents which she alleges took place". He saw no harm in the children returning to live with the parents.
The aunt and her mother appear to have remained hostile to the defendant and the latter wrote a long letter, dated 8 July 1980, to the Director of Social Services, complaining of inadequate action by the social services department. The Director replied on 22 July 1980, correcting the grandmother's impression that the children were in local authority care, and stated that the children preferred to remain with their parents although they were confused by the status of the parents' relationship. There was some uncertainty at this time whether the family would move back to Canada. It was accepted in the Director's letter that "there may be some risk to Rachel".
In a note/report of 30 July 1980, Mr Wood expressed the hope that the family would be able to resolve their problems and stated that there was motivation on the part of all for the family to get back together as a unit. He concluded that he was "very happy with the situation as it stands".
Mr Wood reported a year later in July 1981 that "Rachel remains a moody adolescent" and that, with more involvement with the family, the surer he became that "it is Mrs Ellam's sister and mother (and other members of the family) who are the disturbed characters in this setting…". His view was that "…reconciliation of family relationships was the right course to pursue".
In a report of February 1982, Mr Wood reported thirteen further visits to the family and stated that there was continued "support" to the family as a unit. The claimant alleges that abuse continued in this period and only ceased in 1982 or thereabouts.
In about October 1982, following further family ructions, the claimant (then still only 13 years of age) moved from home to live once more with her aunt and her husband. The claimant says that at about this time she spoke to Mr Wood on the telephone and told him that the defendant had continued to touch her inappropriately. She says Mr Wood doubted her veracity about this. In a letter of late October 1982 to a child psychiatrist, Mr Wood mentions having spoken to the claimant on the telephone, but does not expressly say that she had mentioned continuing sexual abuse. However, a little later in the same letter he states that there had been further such allegations which he described as being "of a very dubious nature". It is clear from that letter that Mr Wood blamed the claimant's aunt for the renewed family difficulties and described the aunt and her mother as being obsessed with the subject of sexual molestation. The doctor replied that it would be more appropriate to refer the case to the hospital's adolescent unit and said that he had forwarded the papers accordingly.
In December 1982 a doctor from the relevant unit wrote to the claimant's GP (copy to Mr Wood) that they did not think that the claimant suffered from any psychiatric disorder and that the difficulties arose from various family problems and "serious marital disharmony for many years now".
Mr Wood's last document on the file reports a visit on 7 November 1983 in which he refers to the claimant's aunt as "the mad sister" and says that, "Having enticed Rachel away she no longer inflicted herself on the rest of the family where her influence was totally destructive". A document dated 6 February 1985, signed by Mr Wood, noted the case was closed.
The only remaining record on the social services file (apparently compiled by a different social worker) is dated 19 November 1986, recording a meeting with the claimant and one sibling, held at the claimant's request, seeking advice about their parents' troubled marriage. The claimant is reported as repeating her allegations of abuse by the defendant. An entry of 16 December 1986 records the claimant's mother's desire to end the marriage.
The claimant attained her majority on 8 June 1986.
The claimant says in her witness statement that she last saw Mr Wood when she was about 19 years old (i.e. in about 1987). She and a sister went to see him in Oxford and, she says, she told him that he had made a "terrible mistake" in not believing her; she had been abused and he was wrong to have believed the defendant. Mr Wood's response is not recorded.
The claimant lived with her aunt for a time in a mobile home in Somerset, but fell out with her and lived with a partner by whom she had a daughter in July 1990. In 1991, she says, that relationship broke up. She lived thereafter at various addresses.
At this time she was told by her mother that she was petitioning for a divorce from her father. As appears from the judge's judgment (see below) the mother relied upon the defendant's unreasonable behaviour, including his alleged sexual abuse of the claimant. The proceedings were contested and the claimant made a statement for those proceedings dated 8 July 1991. A copy of that statement is before us. The statement contains details of the alleged sexual abuse, in...
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