Judge dismisses 'failure to remove' negligence claims on basis councils were prejudiced by 36-year delay between expiry of limitation period and issue of proceedings

The High Court has dismissed common law negligence claims against two councils alleging they should not have placed the claimant with his mother, with the judge concluding that the delay between the expiry of the limitation period and the issue of proceedings had had a detrimental effect on the evidence and availability of key witnesses.

In TA v Westminster City Council & Anor [2023] EWHC 3267 (KB) (17 November 2023), His Honour Judge Freedman, sitting as a judge of the High Court, concluded: “I am entirely satisfied that the prejudice that would be suffered by the defendants far outweighs any prejudice that would be suffered by the Claimant. I am equally satisfied that a fair trial in these circumstances would not be possible.”

The case consisted of two separate claims, referred to in the judgment as 'Claim 0011' and ‘Claim 0034'.

Summarising Claim 0034, the judge said: “In Claim 0034, it is alleged that between mid-August and mid-December 1972, the First Defendant (Westminster City Council) negligently placed the Claimant with his mother under the terms of a Care Order whereby he was foreseeably exposed to the risk of harm, and, in fact, suffered harm. The central allegation is that there was a failure by the First Defendant to remove the Claimant from the care of his mother.

“Similarly, it is alleged against the Second Defendant (London Borough of Lambeth) in Claim 0034, that the Claimant should not have been placed with his mother between December 1972 and January 1973, at a time when there was a supervision order in favour of the Second Defendant.”

Summarising Claim 0011, the judge said: “In Claim 0011, it is alleged that the Second Defendant was negligent in placing the Claimant (and his siblings) at [a children's home] in Kent between 1973 and 1981.”

It was the claimant's case that he made complaints about the abuse to the Second Defendant's social worker, but no action was taken to safeguard him.

The judge noted that claim 0011 was issued more than 36 years after the date when the limitation period expired. The limitation period expired in 1985 – the claimant’s 21st birthday.

Claim 0034 was issued one week less than 37 years after the date when the limitation period expired.

On the delay, HHJ Freedman noted it was for the defendants to prove that they had been prejudiced by the delay and, accordingly, it was for them to demonstrate that the delay had had a “significant and detrimental” effect on the evidence which would have otherwise been available.

Looking at the claimant’s reasons for delay, the judge found that it was the publication of the report following the Independent Inquiry into Child Sexual Abuse ('the IICSA Report') that triggered claim 0034. 

The Inquiry concluded that Lambeth Council operated a culture of cover-up relating to historical child sex abuse.

The judge said: “It is right to observe, at this stage, that the Claimant is not there asserting that his memory of the abuse at [the children’s home] was triggered by the IICSA Report but rather that it gave him confidence to make a formal report of the alleged abuse which he suffered and to commence legal proceedings.” [judge's emphasis]

In his oral evidence, the claimant maintained that he had done his best to “suppress” memories of the alleged abuse at the home.

“On the other hand, he appears to have a clear recollection that he reported the abuse to his social worker at the time”, said the judge.

Judge Freedman noted that the social worker’s date of birth was June 1914, and therefore she almost certainly died some considerable time ago. 

The council contended that if the proceedings had been brought at a much earlier time, the likelihood was that the social worker would have been able to give evidence both as to the suitability or otherwise of the children’s home and, more particularly, in relation to the allegation that the claimant had complained about abuse whilst resident at the home. 

The judge revealed that a witness – the wife of the owner of the home – had been traced to a care home, but she was now 95 years old. He said: “Manifestly, it would be unfair and unjust to put allegations to her that her husband sexually abused the claimant when no such allegation was made at the time.” 

The judge summarised some of the “salient features” of the claimant’s case as follows:

• Whilst accepting that there had been very substantial delay, this could be excused by his reasonable attempts to suppress memories of the abuse, both when in the care of his mother and at the children’s home.
• The medical evidence demonstrated that he was ‘psychiatrically disabled’ from bringing proceedings.
• As soon as he had access to the IICSA Report, he acted promptly to pursue claims against both defendants.
• Although the care records might appear to be incomplete, there was no basis for saying that they were less complete than they would have been if proceedings had been brought earlier. He pointed out that the IICSA Report highlighted the fact that the Second Defendant had concealed evidence of abuse over a very substantial period of time. 

Both defendant councils contended that the delay “cannot reasonably be excused”. 

The judge said: “More particularly, they argue that the delay has caused irreparable damage to the cogency of the evidence, that is both the documentary evidence and any oral evidence which might have been put before the Court.”

Another matter which the defendants relied upon was the question of medical causation. “It is sufficient to observe that it is likely that the claimant's psychological problems are multifactorial, given his long history of drug abuse and his criminal lifestyle. To put it another way, it would be very difficult indeed for a Court to identify the extent to which any sexual or physical abuse has contributed to his psychiatric problems”, said the judge.

Discussing the case, the judge said: “On any view, the length of the delay in these two claims is very substantial. The delay between the expiry of the limitation period and the issue of proceedings in both claims is in the order of 36 years. The abuse which the Claimant allegedly suffered at the hands of his mother occurred more than 50 years ago and the abuse at [the children's home] occurred between 42 and 50 years ago.

“Nevertheless, I remind myself that the length of the delay should not be looked at in isolation. There are some situations where even if there has been very substantial delay, it will be equitable to allow the claim to proceed if there are adequate reasons for the delay and, more particularly, if the cogency of the evidence has not been adversely affected. On the other hand, it is reasonable to assume that the longer the period of delay, the more likely it is prejudice will be caused to the defendant.”

HHJ Freedman noted that from the claimant's perspective, there were “plausible” reasons why he did not progress matters at an earlier time. 

However, he said that when “looked at objectively”, the delay was unreasonable in circumstances when the claimant knew that he had been the victim of abuse and was “capable” of investigating a claim or claims. 

Finally, considering whether a “fair trial” was now possible, Judge Freedman concluded: “It seems to me that this crucial question admits of only one answer, namely the defendants have been sorely prejudiced by the delay. The non-availability of key witnesses is sufficient in itself to demonstrate very significant prejudice.”

He added: “It goes without saying that if the Court does not exercise its discretion in favour of the Claimant, the Claimant suffers very real prejudice. If the Claimant is not allowed to proceed, he will, of course, feel a burning sense of injustice in that he is entitled, as he sees it, to redress for the appalling abuse which he suffered at the hands of his mother and in the [children’s home]. A Court, however, is not permitted to allow a claim to proceed merely because a Claimant may have been the victim of awful abuse, whether sexual or physical or indeed both.

“Overall, when carrying out the balancing exercise, I am entirely satisfied that the prejudice that would be suffered by the defendants far outweighs any prejudice that would be suffered by the Claimant”. 

The judge ruled that a fair trial in the circumstances “would not be possible”, and therefore it would not be reasonable to allow the action.

Lottie Winson