A v Hoare

JurisdictionEngland & Wales
JudgeSir Anthony Clarke MR
Judgment Date12 April 2006
Neutral Citation[2006] EWCA Civ 395
Docket NumberCase Nos: (1) B3/2005/2417: (2) B3/2005/0613 & B3/2005/0613(A) :
CourtCourt of Appeal (Civil Division)
Date12 April 2006
Between:
(1) a
Appellant/Claimant
and
Iorworth Hoare
Respondent/Defendant
and
(2) H
Appellant/Claimant
and
Suffolk County Council
Respondent/Defendant
and
Secretary of State for Constitutional Affairs
Intervenor
and
(3) X & Y
Appellants/Claimants
and
London Borough of Wandsworth
Respondent/Defendant

[2006] EWCA Civ 395

[2005] EWHC 2161 (QB)

Before:

Sir Anthony Clarke Mr

Lord Justice Brooke

Vice President, Court of Appeal (Civil Division) and

Lady Justice Arden

Case Nos: (1) B3/2005/2417: (2) B3/2005/0613 & B3/2005/0613(A) :

(3) B3/2005/2820 & B3/2005/2341

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

(1) THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

The Hon Mr Justice Jack

(2) THE SOUTHEND COUNTY COURT

His Honour Judge Yelton

(3) THE MAYOR'S CITY OF LONDON COUNTY COURT

His Honour Judge Cotran

Royal Courts of Justice

Strand, London, WC2A 2LL

(1) Mr Alan Newman QC and Mr Paul Spencer (instructed by Messrs DLA Piper Rudnick Gray UK LLP) for the Appellant

Mr Christopher Sharp QC and Mr Andrew McLaughlin (instructed by Atkins Public Law Solicitors) for the Respondent

(2) Mr Nigel Cooksley QC and Mr Stephen Field (instructed by BTMK Solicitors) for the Appellant

Ms Kate Thirlwall QC and Mr Steven Ford (instructed by Messrs Browne Jacobson) for the Respondent

Mr Jason Coppel (instructed by the Treasury Solicitors) for the Intervenor

(3) Ms Elizabeth-Anne Gumbel QC and Mr Henry Witcomb (instructed by Messrs Bolt Burdon Kemp) for the Appellants

Ms Kate Thirlwall QC and Mr Steven Ford (instructed by Messrs Browne Jacobson) for the Respondent

SUMMARY

(This summary forms no part of the judgment)

The Court of Appeal heard these three appeals together because they all had a common feature. The claim in each case was brought more than six years after the sexual abuse of which complaint was made (or, in two of these cases, after the schoolboys who had been abused had reached the age of 18), and the judges in the lower courts had held that their claims were all statute barred.

The facts in each case are set out in the Appendix to the judgment, which begins at para 138.

In A v Hoare (paras 116–118, 138–143), a serial sexual offender had been sentenced to life imprisonment for the attempted rape of the claimant A. He had not been worth suing until he won £7 million on the National Lottery on a single lottery ticket bought when he was on day release from prison 16 years after the offence.

In H v Suffolk County Council (paras 119–123, 144–186), a teacher subjected a 15-year old boy to sexual abuse while he was in the care of the Council at a residential school for teenage boys with various difficulties. He did not tell anyone about the abuse until more than six years after his eighteenth birthday, when the police interviewed him after other allegations of sexual abuse at the school had been made.

In X and Y v Wandsworth Borough Council (paras 124–137, 187–221) a boy aged 11 and a boy aged 14 were subjected to sexual abuse by the same teacher, who was responsible for their pastoral care at the school they both attended. Both suffered serious psychiatric disturbances, and neither brought a claim until after the conviction and sentence of the teacher, by which time they were in their late 20s.

In the judgment of the court, given by the Master of the Rolls, the Court of Appeal dismissed all the claimants' appeals. It held (paras 8–69) that it was bound by the decision of the House of Lords in Stubbings v Webb to hold that although most claims for damages for physical or psychiatric injury now have an extendable three-year limitation period from the date of the claimant's "knowledge", claims for damages arising out of an intentional sexual assault have a non-extendable six-year limitation period from the date of the assault (or the claimant's eighteenth birthday, if later). Because the six-year limitation period had expired before the Human Rights Act came into force, the claimants could not rely on the provisions of that Act for assistance.

The Court also held (paras 70–115) that it was bound by the recent decisions of the Court of Appeal in KR v Bryn Alyn and C v Middlesbrough Borough Council to hold that the three claimants who alleged sexual abuse at school could not claim against the school authorities on the grounds that they were vicariously liable for the teacher's breach of the duties he owed these schoolboys or for his failure to report the abuse to the school authorities.

In X and Y v Wandsworth Borough Council the teacher also behaved himself in many other ways which contributed to the harm the boys suffered, but the Court of Appeal considered (para 130) that instead of directing an inquiry into damages, which would have to be conducted on an entirely artificial basis (because the acts of assault would have to be excluded from the inquiry), it would be better to dismiss the appeals and grant permission to appeal to the House of Lords.

The Court observed (para 3) that in 1995 the Law Commission had identified the concern that was felt about this area of the law, and that (para 4) in July 2001 the Commission had laid a report before Parliament which contained recommendations that would enable a court to extend the limitation period in cases like these, if it thought it just to do so. "The remedy has now been in Parliament's hands for nearly five years" (para 6).

The Court also expressed itself willing (subject no doubt to further argument and limited to questions of principle) to grant all the claimants permission to appeal to the House of Lords, if they wished to do so, so that the House of Lords, which would not be constrained by binding case law, could consider how the issues raised by these appeals could be addressed without the intervention of Parliament (para 130). The Court said: "The House of Lords itself may be able to remedy some of the very serious deficiencies and incoherencies in the law as it stands today in a way that we cannot" (para 6).

INDEX

Part Paragraphs

1
3

Stubbings v United Kingdom 26–28

4
5
6
7

Stubbings v Webb was wrong and/or

should not be followed 39–41

8
9
10

Stubbings v UK ,

para 54 63–65

11

authority 66–68

12
13

Stubbings v Webb can be distinguished 70–72

14

law: (a) Hippolyte, Page v Smith and Phelps 73–82

15

law: (b) Vicarious liability for a teacher's unauthorised acts:

Lister v Hesley Hall 83–102

16

Law: (c) Vicarious liability for a teacher's unauthorised acts:

Bryn Alyn and later cases 103–109

17

Law: (d) Vicarious liability for unauthorised acts: other

recent cases 110–112

18

Stubbings v Webb be distinguished

by reliance on a concurrent breach of duty? 113–115

19

(i) A v Hoare 116–118

20

(ii) H v Suffolk County Council 119–123

21

(iii) X and Y v Wandsworth Borough Council 124–132

22
23

APPENDIX PART A A v Hoare 138–143

APPENDIX PART B H v Suffolk County Council 144–186

APPENDIX PART C X and Y v Wandsworth London

Borough Council 187–220

Sir Anthony Clarke MR

This is the judgment of the court to which all members of the court have contributed.

1

Introduction

1

On 6th to 8th February we heard the appeals of claimants whom we will call H, X and Y from the decisions of judges in the county court who had dismissed their claims for damages for the psychiatric harm they suffered as a consequence of sexual abuse to which they were exposed during their schooldays. On 13th February we heard a second appeal by a claimant we will call A. Her claim had been struck out by a High Court master, whose decision was upheld on appeal by a judge. The defendant was a serial sexual offender, and he was sentenced to life imprisonment 17 years ago after he had attempted to rape A in 1988. He was not worth suing until he won £7 million in the National Lottery in 2004. A then brought an action for damages against him, but the master and the judge both held that it was statute-barred. This case has attracted widespread national publicity.

2

All four cases fell foul of the decision of the House of Lords in Stubbings v Webb [1993] AC 498 in which it was held that a claim based on an intentional sexual assault is subject to a non-extendable six year limitation period. Within two years of that decision this court had pointed out one of its unhappy consequences when it held that a daughter's claim against a father who had subjected her to repeated acts of sexual and physical abuse was statute-barred, but that she was at liberty to pursue a claim against her mother for want of care because acts or omissions which constitute negligence are subject to a more generous limitation regime. The court upheld the judge's view that the result was both illogical and surprising and called for the attention of the Law Commission. (For this decision see para 31 below).

3

These and other serious contemporary concerns led to the then Lord Chancellor approving the implementation of a comprehensive review of the law of limitation in the Law Commission's Sixth Programme of Law Reform (1995) Law Com No 234. In describing this programme item, the Commission said:

"Needless complexity in the law costs money. The law on limitation periods, which is largely contained in the Limitation Act 1980, is uneven, uncertain and unnecessarily complex. [Examples are then given] … Concern has also been expressed at the existence of situations where limitation periods can be less favourable from the plaintiff's point of view for intentionally inflicted injury than for negligence.

We believe … that the law in this area is in need of a comprehensive...

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