Preliminary hearing denied

J, K and P v Archbishop of Birmingham and Trustees of the Birmingham Archdiocese of the Roman Catholic Church (Queen's Bench Division - 25 July 2008)

In claims for damages made by victims of historic sexual abuse, limitation should be determined as part of a full trial rather than being dealt with separately by way of a preliminary issue.

The claimants had brought claims for alleged sexual abuse by a priest between eight and 20 years after the expiry of the primary limitation period. They relied on the discretion in s33 of the Limitation Act 1980 (which allows the court to permit a claim for damages brought outside the three-year period if it is equitable to do so) to enable their claims to proceed. The defendants sought permission for limitation to be dealt with by way of a preliminary issue prior to a full trial.

Master Fontaine refused the application for a number of reasons: due to the degree of overlap in the evidence relating to liability, quantum and limitation, it would be difficult to 'hive off' the limitation issue and consequently there would not be any significant saving on costs; the evidence to be given at a preliminary hearing would be distressing for the claimants and, on the balance of probabilities, the risk of them having to give evidence twice was too great; in exercising the s33 discretion, it would be hard for a judge not to consider the merits of the claim, as there was a large amount of factual and expert evidence to consider in making that decision; the potential costs savings (one day at trial) was not so large as to make it a major factor; and the requirement to consider the s14 issues and exercise the s33 discretion in respect of each cause of action favoured hearing all of the issues at a full trial.

Comment

It had been anticipated that this would be the approach taken in this case in respect of limitation following the House of Lords decision in A v Hoare and Others (2008) in January and this decision confirms it. However, it is a first-instance decision and it remains to be seen if different courts will take a different approach. - Sarah Firth, BLM London.

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