Sorry: my previous post seems to have got mangled in the sending. Here it is in unmangled form.

It was always likely that the decision in A v Hoare and Ors [2008] 1 AC 844, while clearly right to say that limitation could be disapplied under s.33 of the Limitation Act 1980 in the case of deliberate as much as inadvertent torts, would lead to monsters yet unborn and an encouragement for claimants to rake over the coals of ancient events.

The latest example of precisely this is Raggett v Society of Jesus Trust of 1929 [2010] EWCA Civ 1002, on BAILII today. A 52-year-old sued for abuse allegedly taking place at school between 1969 and 1976. Knowledge was no problem, as found at first instance: he knew the relevant facts by 1979.  Yet despite this fact, and the fact that the claimant himself had actually been a litigation solicitor for most of the intervening period (!), the judge decided that it was just to disapply the limitation period in his favour. And the Court of Appeal just refused to interfere.

The reasons? (i) the claimant had for something like 20 years "made light" of the incidents, going so far as to invite the alleged perpetrator to his wedding; (ii) he had "not yet recognised and confronted" the abuse"; (iii) he had not, until 2005, "consciously recognised" that he had been abused; and (iv) there did not seem to be much forensic prejudice to the defendants.

It seems to me that this reasoning, which the CA regarded as not unsound and thus declined to upset, is worrying. As regards (i), it seems to give a perverse incentive to claimants who can apparently get over something and get on with life to relapse into self-pity (and, more sinisterly, an encouragement to advisers to foment it). If anything, the fact that someone has pulled himself together and that the limitation period has passed should surely be a cogent reason for barring the suit there and then. As regards (ii) and (iii), I can't quite see that you can know of something but not consciously recognise it, or not confront it (whatever that means). It also seems entirely undesirable and unfair to defendants to allow claimants to use what seems to be weakness or subjective unwillingness to sue to escape the effects of limitation law.

Of course, what one suspects is that the courts are -- consciously or unconsciously -- groping towards a situation where in practice there is no limitation period at all for child abuse claims, and merely a jurisdiction to bar them where the defendant would be prejudiced by the passage of time. But the "no limitation" solution, while in force in some jurisdictions (e.g. Ontario Limitations Act 2002, s 16(1)(h)), doesn't apply here, and was specifically rejected by the Law Commission. If it is to be brought in here, my own view is that it should be done openly and not by stealth.


Andrew