In December 2008 two judgments were delivered which will be important for those who have to grapple with the issue of date of knowledge in dealing with historical abuse claims.  On the 10th December 2008 Eady J in the High Court gave judgment in TCD v Harrow in which the question of date of actual knowledge was crucial.  Two days later, the Court of Appeal gave judgment in Pierce v Doncaster (which by an odd coincidence was an appeal from a decision of Eady J) in which the question of date of constructive knowledge was of central importance.

TCD - the claim

The claimant, aged 41, sought compensation from 3 local authorities, in whose areas she had lived for different periods as a child, for sexual abuse perpetrated  by “X”, her adoptive father.   X abused her between 1975 and 1981 when she was aged 8 to 14.  Limitation was tried as a preliminary issue. One question was, did the claimant know more than 3 years before she issued proceedings that her injury was attributable to the acts/omissions of the councils?

The Judge observed that “knowledge” did not require the claimant to know the exact role of the councils in relation to child protection nor to understand the law of negligence.  Rather, the question was whether she had knowledge of the factual allegations underlying her claim.  He found that when she attained her majority in 1985 she knew that

• she had been abused from the age of 8
• X had been convicted of an indecent assault on her in 1977
• there were rumours that X had previously been convicted of a sexual offence
• she had not been removed from X’s care until 1981
• at X’s trial for rape in 1982 the judge had criticised at least one council
• she had suffered psychological trauma for a long time as a result of the abuse
• she could easily have found out which were the relevant councils.

With the possible exception of the last item, these findings were all of actual knowledge.  He concluded that the claimant was fixed with knowledge from her 18th birthday: she knew enough to make it reasonable for her to begin to investigate whether she had a case against any of the councils.

Pierce - the claim

The claimant sued the Council in his late twenties.  He was born in March 1976, the home circumstances were unsatisfactory and the parents were struggling to cope.  In September the claimant was placed with foster parents in voluntary care.  He remained there until November 1977 when he was returned to his parents. This decision was held to have been negligent.  Subsequently he suffered indifference, neglect and periodic violence and for those experiences damages were awarded.

At first instance Eady J held that for time to start running, it was necessary for the claimant to know Doncaster’s state of knowledge of his circumstances at the material times.  He accepted that the only means open to the claimant to acquire this knowledge was through consideration of the records which he actually obtained in July 2004 and the Judge adopted this as the relevant date.

It appears from the CA judgment that constructive knowledge was not explored extensively at first instance.  The CA identified the question under s.14(3) as whether the claimant might reasonably have been expected to acquire the necessary knowledge from facts ascertainable either by himself or with the help of expert advice.  After summarising the history of the claimant’s attempts to see his file from about 1992 onwards the Court concluded, “He knew where the file was.  He wanted it.  He was offered access to it.  He could clearly have gone to Doncaster to obtain it………Had the Judge addressed the issue of constructive knowledge, he would have been bound to find that the claimant had such knowledge.”

Section 33 discretion

In TCD having decided date of knowledge against the claimant, the Judge went on to consider whether to allow the claim to proceed out of time.  He considered whether it was possible to have a fair trial.   He commented on the dangers of leaping to conclusions on the basis of incomplete records (graphically illustrated in the case by the unearthing of some documents at a late stage), noted that some other important documents were missing and that a search for witnesses who might provide a cogent recollection of events going back about 36 years had been fruitless.  He found that there was serious prejudice to the defendant.

As to the claimant’s reasons for delay, he held that the facts that she had not felt able to confront the abuse and had delayed bringing proceedings until her children were old enough to cope, were not complete answers but had to be looked at against the prejudice caused to the defendant by the delay.

The Judge declined to allow the case to proceed out of time.

In Pierce having decided date of knowledge in favour of the claimant, the Judge did not need to go on to consider  the exercise of discretion under s.33.  Therefore, having reversed his decision on this point, the Court of Appeal remitted the case to the court below for further consideration of section 33.

Comment

It is for the claimant to prove lack of knowledge, not for the defendant to prove the presence of knowledge.    These cases show that careful attention must be paid to both the facts which the claimant actually knew and those which were ascertainable by him.  Further, this information will also be significant in the exercise of the s.33 discretion (“extent to which the claimant acted promptly and reasonably once he knew… / reasons for the delay”).  The sooner these issues are tackled the better.  Defendants are well advised to be inquisitive.