EXE v Governors of the Royal Naval School [2020] EWHC 596 QB

On 13 March 2020 Griffiths J handed down judgment in favour of the Defendants in this complex case.

Background

The Defendants employed a 30 year old man "Hughes" as a kitchen porter from 15 October 1990 to 10 July 1991 at their school for girls. He was provided with accommodation on the school premises.  The Defendants were not aware that Hughes had a criminal record, including offences of indecent assault on a female and unlawful sexual intercourse with a girl under the age of 15. Had the Defendants been aware of these convictions, Hughes would not have been offered employment.

EXE lived at home with her family and was a day pupil at the school. Lunches at the school were provided in a separate building from the classrooms.  From about the spring of 1991 EXE and her best friend took to sitting on a window sill on a staircase in an out of bounds area of this building during their lunch break.  The stairs led from the area of the kitchen down to various store rooms and freezers. Hughes would pass the two girls on the stairs as he was going down and up to collect or deliver items.  They started to exchange pleasantries with Hughes saying such things as " are you having another mothers' meeting" and got to know each other. EXE developed a crush on Hughes during this time.  On 16 May 1991, for the first time, Hughes came across EXE when she was on her own. He told EXE that he had feelings for her which made EXE happy because she already had feelings for him.

On 17 May there was a fire in the area and Hughes was injured. The stairs were blocked off and EXE did not see Hughes again until half term. She got a note to him giving him her details and asking him to contact her.  When he did not, she rang the school to speak to him and they arranged to meet in woods near EXE's home.  After this they entered into a sexual relationship with EXE deceiving her parents and staying on at the school every Thursday evening in order to sneak into Hughes room.  This continued until July when Hughes was effectively dismissed for other reasons and the school term ended. The sexual relationship continued during the school holidays with Hughes following EXE on her family holiday to Spain and then meeting her in the woods upon her return. EXE turned 15 on 5 August 1991. She and Hughes then hatched a plan for her to run away with him which she did over the August Bank Holiday. The alert was raised by EXE's parents and Hughes was arrested when he returned to the south in order to answer bail for the drugs offences which had led to his resignation/ dismissal.  EXE was discovered by the police and taken home by her parents. Hughes was later convicted of offences relating to his relationship with EXE.

The Judge had to decide the following issues:

1. Limitation
2. Torts by Hughes
3. Vicarious liability
4. Negligence
5. Causation
6. Damages

Issue 1 Limitation

EXE turned 18 on 5 August 1994. The primary limitation period expired 3 years later on 5 August 1997. There was no argument raised about date of knowledge so the issue for the court concerned the exercise of its discretion to extend the limitation period under s.33 Limitation Act 1980.  The letter of claim was sent on 24 March 2015 and the Claim Form was issued on 12 September 2017. A moratorium had been agreed by the Defendants on 24 March 2015 so the time elapsed was between the events and this date was 24 years.

The Judge found that this was not a case where EXE was "psychiatrically disabled" from bringing a claim[1] . Having gone in detail through the evidence available and not available, the Judge was firm in his conclusion that the delay had affected the cogency of the evidence. Chief amongst this consideration was the fact that EXE had made a contemporaneous statement to the police, numerous details in which she now sought to contradict.  The Judge refused to exercise his discretion and the claim failed on limitation.

Having made this finding, the Judge could have left his judgment at this point but he went on to consider the next 3 issues and make findings which are of use to parties dealing with them in similar cases.

Issue 2 Torts by Hughes

This focused on the issue of consent. It was the Defendants' case that EXE was legally capable of giving her consent and had in fact consented to the sexual relationship and such consent was not vitiated by 'grooming' on the part of Hughes. The Judge agreed. He referred to the decision of the Court of Appeal in London Borough of Haringey v FZO [2] and went through a thorough analysis of the evidence to support his finding that EXE had indeed given her consent.  He rejected the argument raised on her behalf that Hughes had 'groomed' her.  This is an important judgment for Defendants in historic sexual abuse claims where the assertion of 'grooming' is readily trotted out by claimants and often accepted without more by the Court.

" I find on the evidence that the account she gave in the Police Statement was accurate, and that she knew what she was doing and genuinely wanted to do it at the time, without being groomed to do so by Hughes, and without her free will being undermined. I find that she took the initiative, and was if anything making the suggestions:.."[3]

Issue 3 Vicarious Liability

Because of his findings on issue 2, the question of vicarious liability did not arise but the Judge none the less made careful and important findings in this respect.  There was no question that Hughes was employed during the first acts of sexual intercourse up to 10 July. The first stage test [4] of whether the situation was capable of giving rise to vicarious liability was easily satisfied. The Judge went on to consider the second stage of the test and whether there was sufficient connection between Hughes' employment position and the wrongful act. The Judge found no sufficient connection. The only connection to Hughes employment was that he came across EXE at the school during his working hours. Against this, EXE was in an out of bounds area, Hughes' job duties did not involve contact with the girls and he was not in a position of power, authority or influence over EXE. Despite the first act of sexual intercourse taking place in his room on the school premises, this did not provide a sufficient connection as it took place out of his working hours and when EXE was not meant to be in school. After Hughes ceased employment the relationship continued and the most traumatic part did not take place until late August when the alleged abduction took place.

This distinguishes the case of EXE from that of FZO in which vicarious liability was established and found to have continued long after the claimant had left the school.  The ratio behind FZO shows, however, that not only was the abuser in a position of power and influence ( a teacher) he was found to have 'groomed' the claimant, thus not only vitiating consent but allowing an unbroken chain of vicarious liability whilst the abuser remained employed even though the pupil had moved on.

Issue 4 Negligence

This was a tricky issue which was fact specific and hence not of great wider interest. It concerned the allegation that the Defendants should have carried out a criminal background check on Hughes prior to offering him employment.  The issue is unlikely to arise again save in historic cases as such checks are now commonplace and streamlined. At the time there was somewhat ambiguous guidance and the Judge held that from the available evidence there was no negligence.  The Defendants relied upon this as a further area where s.33 discretion should not be exercised in the Claimant's favour because of the deaths of two central witnesses to the decision making process and the absence of documents. The Judge expressly held that the evidence on the issue was not satisfactory due to the delay.[5]

Issues 5 and 6 fell not to be considered in the light of the above.

Comments

This was a very thorough judgment by a careful Judge.  The core issue was limitation and at every turn the Defendants were able to show that the lapse of time had adversely affected the evidence in respect of all issues.  There was no need for the Judge to go on to consider in detail issues 2,3 and 4 and make findings on them. The fact that he did so and supported his findings with clear and powerful reasoning makes this an extremely useful judgment to consider in the context of historic sexual abuse claims.

[1] A reference to Lord Hoffman's judgment in A v Hoare [2008] 1 AC 844 @ para 49

[2] [2020] EWCA Civ 180

[3] Judgment para 124

[4] As set out in Various Claimants v Catholic Welfare Society [2013] 2AC 1

[5] Para 133 but also dealt with in the section on limitation at para 70.