The High Court has refused to strike out proceedings brought by a man who alleges he was sexually abused as a child at a school operated by a religious order. The court’s decision leaves the claim to proceed; it does not determine whether the abuse occurred or whether the order is liable.
The judgment, delivered by Mr Justice Max Barrett on 3 February 2016, concerns allegations of abuse in the early to mid-1960s by a since-deceased lay teacher, identified in the judgment as Mr A. The plaintiff, anonymised as Mr Y, says some incidents took place in a classroom while other pupils were present. These are allegations set out in the statement of claim, not findings after trial.
The religious order applied to have the proceedings struck out, arguing that the passage of time made a fair trial impossible and that the claim was barred by the Statute of Limitations. The court considered the application under the principles governing delay, including whether delay was inordinate and inexcusable and, if so, where the balance of justice lay.
A psychiatrist’s report stated that Mr Y had suffered severe childhood sexual abuse and described psychological repression of traumatic memories. The court considered that Mr Y appeared to have recalled the abuse only about three years before the proceedings. It held that his delay was neither inordinate nor inexcusable in the circumstances.
The order also relied on the alleged abuser’s death and limited documentation available to defend the case. The judge noted that the pleadings described incidents in or near other pupils, and there was no suggestion that all those pupils were dead or unavailable to give evidence. The court said that the death of the alleged abuser alone did not settle whether a fair trial remained possible.
Although it was not strictly necessary after finding no inordinate or inexcusable delay, the court said the balance of justice would favour allowing the claim to proceed. It referred to the plaintiff’s alleged memory repression, the plaintiff’s burden to prove the claim, and the apparent availability of witnesses.
The court also rejected the limitation objection at this stage. It formed a provisional view that the claim fell within section 48A of the Statute of Limitations 1957, as amended, which can treat a person as under a disability where psychological injury substantially impairs the ability to decide to bring an action. The judge stressed that the issue of abuse and the claim’s merits remain for the trial court.
The application was refused insofar as the proceedings concerned alleged sexual abuse. The High Court made no finding that Mr Y had been abused; that question was left for trial.