B e f o r e :
THE HONOURABLE MR JUSTICE TURNER ____________________
____________________
Richard Baker KC (instructed by Affinity Law Ltd) for the Claimants Paul Stagg KC (instructed by Browne Jacobson LLP) for the Defendant Hearing dates: 4, 5, 6, 7, 10, 11 and 12 November 2026 ____________________
HTML VERSION OF JUDGMENT APPROVED BY THE COURT FOR HANDING DOWN ____________________
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The Hon. Mr. Justice Turner :
INTRODUCTION
The three claimants in this case each allege that in the 1980's, when they were all children, they were the victims of physical and sexual abuse while they were living at The Beeches Children's Home, Leicester Forest East ("the Beeches") which was operated by the defendant. The claim of a fourth claimant has been stayed as a result of concerns over her continuing capacity to litigate.
There are two alleged perpetrators: Frank Beck, who was the officer in charge of the home, and Greville Janner MP (as he then was) who is alleged to have been a frequent visitor. It is agreed, for the purposes of these claims, that the defendant is vicariously liable for any abuse proved to have been carried out by Beck but not for any abuse proved to have been carried out by Janner. The distinction is, however, academic because the defendant concedes that, if any given claimant's allegations are proven, then Beck must have facilitated Janner's access to that claimant for the purposes of carrying out abuse upon him and it is therefore liable for those acts of abuse in any event.
The defendant nevertheless denies that the claimants were, in fact, victims of the alleged abuse and also contends that these claims are now statute barred. It was therefore ordered that preliminary issues should be tried on limitation and liability. These are the issues which arise for my determination in this judgment which follows upon a full contested hearing in which witnesses were called and evidence adduced by both sides. In the event that I were to find in favour of one or more of the claimants on both of these issues, the quantum of damages would fall to be agreed or assessed at a later date.
It is convenient for me to begin with a short description of the alleged perpetrators.
FRANK BECK
Frank Beck, a former Royal Marine, had worked in children's homes in Leicestershire since 1973. He was a predatory paedophile. It is not disputed that, for many years, he physically and sexually abused some of the children for whose welfare he was responsible.
In May 1990, he was arrested and charged with multiple counts of sexual and physical assaults against children who had been entrusted to his care. On 29 November 1991, he was convicted, after trial, of seventeen offences including buggery and rape. He was sentenced to life imprisonment and died in prison in May 1994.
GREVILLE JANNER
Greville Janner was born in Cardiff in 1928. He was called to the Bar in 1954 and was elected MP for the constituency of Leicester North West in 1970 and for Leicester West from 1974 until 1997.
In September 1997, he was ennobled as Baron Janner of Braunstone. I mean no posthumous disrespect in referring to him henceforth in this judgment, for the sake of convenience and consistency, as "Janner".
Allegations of sexual abuse against Janner began slowly to accumulate over a very long period of time but it was not until 2015, when he was already a very sick man, that he faced trial on 22 counts of indecent assault and buggery against young complainants between 1963 and 1988. These allegations were destined never to come before a jury. He died in December 2015, aged 87, before his trial had begun.
THE JANNER REPORTS
There had been earlier police investigations into allegations of sexual abuse made against Janner in the 1990's and 2000's but matters were taken no further on these occasions. Two official reports were strongly critical of these earlier investigations. They were:
Sir Richard Henriques' report : An independent inquiry into allegations made against Lord Greville Janner ("the Henriques Janner report"); and
The Independent Inquiry into Child Sexual Abuse : Institutional responses to allegations of child sexual abuse involving the late Lord Janner of Braunstone QC ("the IICSA Janner report").
Sir Richard Henriques also carried out a detailed review of the Metropolitan Police investigations into persons of prominence following the notorious and false complaints of sexual abuse made by Carl Beech. On 22 July 2019, Beech was convicted of perjury and later sentenced to 18 years in prison. One of those whom Beech falsely accused of sexual abuse was Janner.
The parties are agreed that I am entitled to have regard to the matters of primary fact referred to in these reports but that the opinions of the authors are not admissible (see Hollington v F Hewthorn & Co Ltd [1943] K.B. 587). The reports are publicly accessible online and it is therefore necessary for me only to summarise the history which they record.
THE JANNER INVESTIGATIONS
The suspected involvement of Janner in the sexual abuse of children first arose in a formal context from an account given by a complainant referred to in the Henriques Janner report as C1. He had given a statement to the police investigation into Beck in 1990 but did not, at that stage, mention Janner. However, when Beck's house was searched, letters were found there from Janner to C1 signed "love Greville". C1 than gave a further statement on 29 January 1991 alleging sexual misconduct by Janner who he said he had first met at his school.
It was part of Beck's unsuccessful defence in the criminal proceedings against him that he was doing no more than attempting to counsel victims of abuse which had, in fact, been perpetrated not by him but by Janner and others.
During the investigation of C1's complaints, Janner was interviewed by the police on 13 March 1991 in the presence of his solicitor. On advice, he gave no comment responses to all of the questions asked of him.
The matter against Janner was, at that stage, pursued no further.
The Kirkwood Report
After Beck's conviction in November 1991, the defendant set up an inquiry under the chairmanship of Andrew Kirkwood QC who, in 1992, produced a long and detailed report into aspects of the management of children's homes in Leicestershire between 1973 and 1986. The report makes no express reference to Janner but Janner did give evidence to the inquiry during the course of which he denied that he even knew Beck.
Operation Magnolia
In February 2000, Leicestershire police embarked upon Operation Magnolia. Its purpose was to investigate whether there was evidence of physical or sexual abuse of children at the Holt and Ratcliffe Road Children's Homes between 1980 and 1990. Beck had been the officer in charge of Ratcliffe Road between 1975 and 1978.
During the course of the Operation, further allegations of sexual abuse against Janner were made but the investigation into those allegations was flawed and appears, on the face of it, to have been fatally undermined by a deliberate decision by Leicestershire Police to withhold key witness statements from the Crown Prosecution Service ("CPS").
In March 2000, a former care-home resident (referred to as C2) was interviewed by police about his allegations against the staff. At the end of that interview, he claimed that he had been sexually abused by Janner and arrangements were made for him to be further interviewed about this allegation. The account he gave was recorded in a formal witness statement. However, this statement was, inexplicably, not entered into the Home Office Large Major Enquiry System ("HOLMES") until 8 November 2001. Beyond carrying out some general enquiries, Leicestershire Police failed thereafter properly to investigate this complaint against Janner.
In May 2001, another former resident was interviewed by officers from Operation Magnolia. He too made an allegation that Janner had sexually abused him. His account was also set out in a formal statement. Despite this second allegation, further investigations into the accusations against Janner simply ground to a halt.
On 28 November 2001, a meeting took place between the Leicestershire CPS reviewing lawyer and police officers attached to Operation Magnolia. The case against staff at the children's homes was discussed but not the allegations against Janner. The statements of the two witnesses were simply not passed over to the CPS and the matter went no further.
Operation Dauntless
The inaptly named Operation Dauntless was established by Leicestershire Police in May 2006, following an allegation by another former resident, C3, who claimed that he had been sexually abused by a number of men, including Janner. During the course of those further enquiries, the statements of the two Operation Magnolia witnesses were discovered in a locked drawer at Market Harborough Police Station. The Operation Dauntless officers realised that these statements had not been sent to the CPS during Operation Magnolia and that, in consequence, no follow-up action had taken place.
The officer in charge of the Operation decided that Janner was not to be arrested or interviewed unless and until supportive advice from the CPS had been received. In April 2007, a file of evidence was forwarded to the Leicestershire CPS. The CPS did not respond and advise the police until 19 December 2007 and, even then, concluded that there was no realistic prospect of securing a conviction against Janner and that any further enquiries were unlikely to strengthen the case against him. The police did not seek to challenge the CPS decision.
Operation Enamel
In late 2012, Leicestershire Police received representations suggesting that Janner should have been prosecuted for child sexual abuse offences. As a result, Operation Enamel was set up to establish whether there was any evidence which had not been previously properly considered in the course of the earlier police investigations, including Operations Magnolia and Dauntless, and to decide whether to review the previous decisions.
Whilst some of the allegations under consideration had previously been investigated, other complainants contacted the police for the first time during the course of Operation Enamel.
In stark contrast to its predecessors, Operation Enamel was a very significant police investigation which, at its height, involved about 30 officers. Nearly 800 witness statements were taken. More than 1,000 exhibits were examined. Over 8,000 documents were registered on HOLMES and over 3,600 lines of enquiry were raised.
The witnesses whose earlier complaints had been passed over were contacted and, as new complainants came forward, their allegations were also investigated.
Janner was not arrested as part of Operation Enamel but his home address and parliamentary office were searched. The police were planning to invite Janner for an interview but a police surgeon advised that he was, by then, suffering from Alzheimer's disease the severity of which meant that his cognitive function was so poor that the value of any answers he might give would be questionable.
The Later Involvement of the Crown Prosecution Service
Throughout 2014 and 2015, officers from Operation Enamel sought advice from the CPS and independent senior counsel on whether any further enquiries should be pursued or additional evidence obtained and, ultimately, whether any charges should be brought.
In total, the allegations of 40 complainants had by then accumulated all of them said that they had been abused by Janner. By 2015, their complaints were at various stages of investigation but there were twelve complainants in relation to whose allegations the investigations were complete. The CPS reviewing lawyer advised that, as a result of the new evidence, charges should now be brought.
Despite this, on 16 April 2015, following a review by the Director of Public Prosecutions, the CPS announced that, although the evidential test was met, the medical evidence in respect of Janner's health was such that it was not in the public interest to prosecute him. It issued a press statement to this effect.
This decision was, however, subsequently reviewed as part of the Victims' Right to Review Scheme and, on 29 June 2015, the Director of Public Prosecutions announced that her earlier decision no longer stood and that Janner was to face criminal proceedings after all.
In September 2015, at a preliminary hearing in the criminal proceedings, the indictment as then drafted contained 22 counts of indecent assault and buggery contrary to the Sexual Offences Act 1956. The offences were alleged to have taken place between 1963 and 1988 over which period the nine complainants had been aged between 8 and 16 years old. Some of them were former residents of Leicestershire County Council's children's homes, others were not.
On 7 December 2015, Openshaw J ruled that Janner was unfit to stand trial. There was, however, to be a trial of facts to establish whether Janner had committed the alleged acts of abuse but his death on 19 December 2015 brought all criminal proceedings to a close.
By this time, the prosecution had indicated that it was seeking to add twelve further counts relating to three additional complainants. These included allegations of indecent assault, buggery and attempted buggery which were said to have taken place between 1969 and 1985 when the complainants had all been aged 16 years or under.
The three claimants in the instant case first made public their formal complaints against Janner following the publicity surrounding his pending trial. They were not, however, identified as victims in any of the counts on the indictment against him.
The IICSA Janner Report and Leicestershire County Council
A number of those who made allegations against Janner were former residents of children's homes run by the defendant. In relation to one complainant, it accepted that it knew about Janner's association with that child and, although denying that there was any indication that sexual abuse was involved, admitted that it had failed to take adequate steps in response to concerns expressed by staff about the relationship.
More generally, the defendant also accepted that during the 1970s and 1980s it received numerous complaints that children within their children's homes were being physically and sexually abused by individuals including members of staff. It accepted that its procedures for detecting and responding to those allegations were "inadequate" and it apologised to those children in its care for the abuse they had suffered. The troubled backgrounds of the complaints of abuse had meant that they were not given the attention and respect they deserved.
THE COMPLAINANTS
AB
AB has been granted anonymity in these proceedings.
He was resident at the Beeches between 6 December 1984 to 20 May 1985 and between 10 June to 17 December 1985. He alleges that during his time there he was repeatedly physically and sexually abused by Beck and, on two occasions, by Janner.
He said that soon after arriving at the home, while he was sharing a dormitory with other boys, he noticed that Beck was behaving inappropriately towards other children by putting them on his lap and caressing them. Within a few weeks, Beck was doing it to him too. The violent physical abuse also started at about the same time. Beck would grab him painfully by the arms and around the neck or pull him up by the legs and hit him if he answered back. Other children were victims of the same treatment.
After a while, AB was moved into a single room in the Beeches which then gave Beck the opportunity to rape him anally causing severe pain and bleeding.
On another occasion, in an incident which put AB in fear of his life, Beck came into the bathroom whilst he was taking a bath, grabbed him around the throat and put his head under the water a number of times before throwing him onto the floor and telling him to 'get dressed'.
One time around Christmas, Beck took AB to his home in Braunstone. There he was introduced to a man who he later found out was Janner. Janner forced AB to masturbate him and then had sex with him. He was made to perform oral sex on Janner who then went on to perform oral sex on him.
In May and June 1985, AB spent some time in the Glen Parva Youth Custody Centre before returning to the Beeches. After he had returned, Beck raped him again with substantial force. Janner arrived around 20 minutes later and AB was made to perform oral sex upon Janner who then performed oral sex upon him. Janner then anally raped him.
The final incident occurred when AB was spending New Year at the Beeches. Beck saw the claimant drinking alcohol and physically assaulted him before anally raping him and forcing him to perform oral sex upon him.
AB states that he disclosed the abuse to his social worker, Rose Kay, on a number of occasions but she just told him to stop being silly. Everyone he told thought he was making it up. He told the police about the abuse when they picked him up at various stages when he went on the run whilst he was resident at the Beeches but he was not believed.
A report dated 5 March 1986 records a discussion with Elizabeth Clarke, a member of staff at the Beeches. She reported concerns about Beck's violence towards the children at the home and referred to a report by a child that they had been 'touched up' by Beck. The interviewer advised her that: "a good deal of physical contact was normal in the home, and she accepted this." AB was mentioned within the report but not as a victim of either physical or sexual assault.
AB was first interviewed by the police in October 1990 and provided a statement to them describing violence and sexual assaults by Beck on other children at the Beeches but not mentioning any such assaults on him. He now says that he was embarrassed to disclose the sexual abuse and he did not want to appear weak by complaining of physical abuse.
The claimant eventually approached the police in 2015 when he became aware that others were making complaints about Janner. He says he now feels guilty about not coming forward sooner.
In the context of these proceedings, a consultant forensic psychiatrist, Dr Roychowdhury, prepared two reports on behalf of AB dated 28 June 2019 and 28 February 2025. They were 55 and 68 pages long respectively. Professor Maden, of the same discipline, reported on behalf of the defendant. His report was 42 pages long. There is a joint report of 10 September 2025.
The psychiatrists agree that the AB's mental health deteriorated in 2007. Some of his reported symptoms are characteristic of PTSD from that point on but it is also agreed that, even taken at face value, they did not at that stage meet all of the criteria for a PTSD diagnosis.
Both experts accept, however, that he reported symptoms consistent with a diagnosis of PTSD from 2015. Dr Roychowdhury considers that he had that condition from then onwards. Professor Maden, however, doubts the claimant's credibility and so does not accept that diagnosis.
There are a number of confounding features. AB probably had a conduct disorder predating his stay at the Beeches. He has in the past abused alcohol, cannabis and cocaine. He has a personality disorder with mainly dissocial and impulsive traits.
Dr Roychowdhury considers that the claimant's PTSD was caused by abuse suffered at the hands of Beck and Janner ("the index events") and that the abuse made his personality disorder worse than it would otherwise have been.
Professor Maden concludes that "if the Court finds the claimant was abused as he says he was" it would be likely to have made all his mental health problems worse. He does not however accept that the claimant is a credible witness.
AB's claim is in respect of the abuse he is alleged to have sustained at the hands of both Beck and Janner.
Wayne Phillips
Phillips was resident at the Beeches intermittently between April 1984 and May 1986. He alleges that during this period he was sexually abused by Beck and, on one occasion, by Janner. He said that Beck would provoke him to have a tantrum as a pretext upon which to restrain him. He would rub himself against him in a sexual manner. Whilst Phillips was resident at the Beeches, Beck would sexually assault children in the attic of the building, The first time that Beck took Phillips to the attic, he forced him to watch whilst he raped a nine-year-old girl. The claimant did not intervene to help her because he was terrified of Beck who was large and physically strong.
Beck frequently penetrated Phillips anus with his finger and raped him on between 20 and 30 occasions. The claimant was made to take part in oral sex with Beck, either giving or receiving, on an almost daily basis.
Phillips was, on one occasion, taken to Beck's home in Braunstone on the pretext of being required to do some jobs there. Janner later arrived at the house. Phillips was separated from other children and left in a room with Janner who forced him to masturbate and perform oral sex on him. Janner attempted to anally rape him but could not manage to penetrate him. He says that he vividly remembers the smell of the sofa in the room which resonates with the account given by AB.
Phillips says that he reported the physical abuse, but not the sexual abuse, to an external social worker, Stuart Hainson. He did not mention the sexual abuse because: "I was trying to look tough, but in reality I was embarrassed to admit it to him …".
Philips also says that he reported abuse to the police, including on one occasion the abuse by Janner, when he was arrested or after he had run away from the Beeches but nothing ever came of it. He thinks that he was not believed because he was a child in care or because the police didn't want to do anything about it. On one occasion, a police officer told him and other children to 'stop being so stupid' when reporting their abuse.
By the time that Phillips was approached by the police in the context of the investigation into Beck, he had a new family and felt that his life was improving. He told them about the physical abuse but could not bear to face admitting that he had been sexually abused. In this regard, his statement to the Police dated May 1990 is thus relatively brief.
In the event, Phillips brought a claim for damages for the physical abuse he alleged against Beck in the 1990's and received compensation. He said he was unable to admit that he had been sexually abused at that point. A medical report was prepared in 1994 which detailed the type of physical abuse in respect of which the claim was brought.
By 2015, Phillips was serving a custodial sentence at HMP Ryehill when he spoke to his personnel officer about some of the abuse that he said he had suffered in care and was consequently interviewed by officers working for Operation Enamel. He was visited by investigating officers in July 2015 and he then alleged that he had been the victim of sexual abuse by Janner. The contemporaneous records suggest, however, that when visited a few weeks later for a visually recorded interview he refused to cooperate with the process and remained in his cell.
He was visited again in December 2016 and initially refused to engage with officers, before stating that he did not want to pursue the matter further. By this time he had been recently arrested for an offence of rape and says that his life at that time was chaotic and plagued by addiction.
Consultant Psychiatrists, Dr Shergill and Professor Maden, reported on behalf of Phillips and the defendant respectively. They agree that, in general terms, severe abuse would be likely to cause mental health problems or make existing mental health problems worse. Dr Shergill diagnosed Phillips with PTSD caused by the sexual abuse and considered that his remaining mental health problems were probably made worse by sexual abuse. Professor Maden was of the view that Phillips's mental health would have been unaffected by the abuse, if it occurred, and doubts the diagnosis of PTSD.
Phillips' claim is in respect, therefore, of sexual abuse alleged to have been perpetrated on him by both Beck and Janner.
Timothy Betteridge
Betteridge was resident at the Beeches between 28 August 1981 to 16 November 1981.
He later brought a claim against the defendant alleging that he was sexually and physically abused by Beck when he was there. The defendant admitted liability and settled his claim in 1996.
His present claim relates to additional sexual abuse alleged to have been perpetrated on him by Janner.
He alleges that, following a visit facilitated by Beck, Janner took the claimant out of the Beeches under the pretext of taking him to a cricket match. Instead, Janner drove Betteridge to an allotment where he parked his car and forced Betteridge to perform oral sex upon him, whilst he touched his genitals.
On another occasion Betteridge was taken to one of the portacabins situated on the Beeches site by an employee of the defendant known as 'Cookie'. They were accompanied by Janner who took the opportunity to anally rape Betteridge in the portacabin. Betteridge does not recall whether 'Cookie' stayed whilst Janner raped him or had left before it happened.
Betteridge says that he reported that he had been sexually abused to members of staff at the Beeches but no action was taken. Another resident had told him in that he was not allowed to say anything about what had happened.
Betteridge was allocated a befriender by the defendant, who took him out of the home on occasions. He reported the abuse to that person but his response was that it had 'nothing to do with him'. Another person, Betteridge cannot remember who, told him that he would not be believed because he was 'just a spoilt brat in care'.
Betteridge also says that he told his social worker, Alan Mangham, that he had been abused by Janner and by Beck but he was very dismissive of these claims. He thinks that everyone who worked at the care home knew what was going on there but did nothing. He ran away from the home numerous times but was caught by the police and returned. On several occasions he said that he reported that he had run away because he was being abused but was not believed. In the end, he gave up trying.
He said that he first made formal disclosures about his abuse at the hands of Janner in 2015 when the complaints by others against Janner had become more widely known. He felt secure in making disclosures at that time because there was 'safety in numbers'. He felt that he would not have been believed if he had raised those issues earlier.
His report to the police was recorded in a taped interview during the course of which he appeared to become very distressed at various times when giving his account.
Dr Shergill and Professor Maden agree that the claimant probably had a mixed disorder of conduct and emotions predating his time at the Beeches and that he had well documented and severe problems in peer relationships before the material allegations. Dr Shergill diagnosed PTSD but Professor Maden did not accept that diagnosis, based as it was on uncorroborated accounts of the claimant.
The experts agree that sexual abuse would be likely to cause mental health problems. Dr Shergill considers that the claimant suffered abuse, which caused PTSD. Professor Maden does not believe that abuse by Janner, if found to have occurred, would have caused him psychiatric harm over and above that caused by Beck in respect of which he had already been compensated.
LIMITATION – THE LAW
Proposed legislative changes
I start with a short digression. The Crime and Policing Bill presently before Parliament contains provisions the effect of which, if brought into law, would impose stricter limits on the circumstances in which claims relating to sexual abuse on child victims could be defeated by a defence of limitation. As presently drafted, however, it does not apply to any claim which has been determined prior to the commencement of the new provisions. Accordingly, the issue before me must be decided in accordance with the law as it presently stands and no purpose would be served by my speculating on what form my analysis might otherwise have taken.
Disapplying the primary limitation period
Section 11(1) of the Limitation Act 1980 ("the Act") provides, in so far as is material:
It is now established that "breach of duty" includes trespass to the person (see A v Hoare [2008] 1 AC 844 ).
However, the time period does not run while the claimant is "under a disability". Section 38(2) of the Act provides that "For the purposes of the Act a person shall be treated as under a disability while he is an infant."
The three year period therefore started to run against each claimant in this case on his 18 th birthday and expired on the first working day after his 21 st birthday. The primary limitation period in respect of each of their claims has, therefore, long since expired.
The claimants, however, each ask the court to disapply the primary limitation period, which would otherwise operate so as to bar his claim, with recourse to section 33 of the Act which provides:
The stage of analysis at which the limitation issue must be adjudicated upon
Before looking more closely at the proper approach to the balancing act involved in applying the provisions of section 33 it is necessary to consider the stage at which this exercise falls to be performed.
In KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 Auld LJ held at paragraph 74:
In B v Nugent Care Society [2010] 1 WLR 516 , Lord Clarke MR, who gave the judgment of the court observed that the judge who has to determine the issue as to whether the primary limitation period should be disapplied:
In JL v Bowen [2017] P.I.Q.R. P11 Burnett LJ (as he then was) held:
He continued:
From this analysis, it follows that I should adopt a three stage process:
(1) First, I must consider whether a claimant's case in respect of any given alleged perpetrator, on the available evidence, is capable of raising a case for the defendant to answer. If not, that claimant's case in respect of that perpetrator fails in limine.
(2) Second, before reaching a conclusion as to whether it is found as a fact that that the claimant was abused by either or both alleged perpetrators I must then perform the balancing exercise required by s33 of the Limitation Act 1980 in respect of each.
(3) Finally, if the limitation period is disapplied, the court must go on to decide on all the evidence whether that claimant has established, on the balance of probabilities, that he was abused by either or both alleged perpetrators.
The case law
There is no shortage of reported cases in which the courts have grappled with the issue of whether or not to disapply the primary limitation period in respect of a whole range of personal injury claims. The vast majority of these, however, turn very much on their own facts and, in any event, in this case, I can discern no significant dispute between the parties as to the central principles to be applied.
In Carroll v Chief Constable of Manchester Police [2018] 4 WLR 32 , the Court of Appeal summarised the general principles to be applied at para 42. For the sake of brevity, and because no challenge is raised as to the soundness of the principles identified, I have omitted the references to the authorities cited in support:
Care must be taken not to embark upon the balancing act with any general preconceptions as to which factors are to be given greater weight than others. As Stuart-Smith LJ observed in Blackpool Football Club Limited v DSN [2021] EWCA Civ 1352 :
In A v Hoare para 86, in the context of sexual abuse claims. Lord Brown observed at para 82:
In RE v GE [2015] EWCA Civ 287 , McCombe LJ observed at para 59:
In the same case, Lewison LJ observed:
A particular feature of this case is that both Beck and Jenner are now dead. The potential significance of the death of alleged perpetrators has been considered in a number of decided cases.
In Murray v Devenish [2018] EWHC 1895 (QB) the claimant alleged that he had been sexually abused by a priest at a religious seminary as a boy in the early seventies. There were a number of evidential factors which tended to support his allegations and the court held that his claim was sufficiently strong to be prima facie credible. However, the alleged perpetrator, one Michael Riddle, had died in 1999.
It was argued on behalf of the claimant that the evidence against Riddle was so strong that his death was of no significant disadvantage to the defendant. Nichol J concluded on this issue:
The judge went on to find, in the circumstances of that case, that the defendants were significantly prejudiced by the death of the alleged perpetrator.
A similar approach was taken by Lambert J in FXF v Ampleforth Abbey Trustees [2020] EWHC 791 (QB) in which the alleged perpetrator had died before the claim was brought:
SEPARATE CAUSES OF ACTION
The application of the balancing exercise under section 33 falls to carried out in respect of each cause of action separately. This requires me to look at the following:
AB: Physical and sexual abuse by Beck and sexual abuse by Janner;
Phillips: Sexual abuse by Beck and by Jenner;
Betteridge: Sexual abuse by Janner.
The wording of my reasoning in this judgment therefore falls to be construed accordingly.
Strictly speaking, each individual act of abuse proved against each perpetrator gives rise to a separate cause of action but, in the circumstances of this case, it would be unrealistic to suggest that the outcome of balancing act could or should be different as between individual occasions of alleged abuse. I therefore propose to treat each of the complainant's claims against the alleged perpetrators separately and the allegations of physical and sexual abuse against Beck separately without further differentiation between individual occasions. I note that a similar course was taken by the court in Murray v Devenish at para 73(iv).
SHOULD ANY OF THE CLAIMS FAIL IN ANY EVENT BEFORE THE EXERCISE OF THE SECTION 33 BALANCING EXERCISE?
The defendant has conceded, in my view realistically, that, save only in relation to AB's case relating to Janner and in relation to the very narrow point of identification, each claim raises a case to answer.
I will, therefore, consider the issue of AB's identification of Janner at this stage.
The defendant points out that AB told the police in interview on 28 April 2015 that he did not know who Janner was until he saw a photograph of him in the 1990s. His witness statement is confusing on this issue. In one paragraph he says, of the second occasion upon which they met, that: "He introduced himself as Greville Janner." But in the following paragraph he says: "Janner asked if I knew who he was; I didn't. He didn't tell me his name or who he was." In cross examination he said he thought that his recollection in the police interview was the more likely to be accurate.
In addition, he described Janner as "tall", but it is not disputed that Janner was of lower than average height.
Nevertheless, I am satisfied that, notwithstanding the points made on behalf of the defendants on this issue, there is sufficient residual credibility with respect to AB's identification of Janner to surmount the first stage hurdle. Even if his account of Janner identifying himself at the time of the abuse is inaccurate (as it may well be) it does not preclude a finding that AB, in any event, recognised Janner from a newspaper report in the 1990's. His evidence on the point was not so severely undermined as to preclude the court from proceeding further. Accordingly, it is necessary to proceed to the sections 33 balancing exercise in respect of all claimants against each alleged perpetrator.
THE SECTION 33 BALANCING EXERCISE
Common features
Although, as I have already noted, the case of each claimant against each alleged perpetrator falls to be considered separately, a factor which they share is that the length of the delay is very considerable. In the case of each claimant, the primary limitation period expired on his 21 st birthday (subject to modest extensions to the next working day in the case of AB). This is a factor to be taken into account under section 33(3)(a).
The relevant dates are:
AB: 25 December 1989.
Philips: 26 November 1992.
Betteridge: 22 June 1989.
None of these defendants suffered from a disability after that date which deprived him of the capacity to litigate. Subsection (d) of the section 33 list does not therefore help the claimants.
I shall return to the reasons for the delay later in this judgment.
Areas of dispute
I am not constrained to consider the subsections under section 33 in the order in which there are therein set out and, in the circumstances of this case, I consider it most convenient to take subparagraph (b) as my starting point without thereby seeking to accord to it any a priori importance. This relates to the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the claimant or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11. I will, of course, return to the other subparagraphs in due course.
The death of Beck
The defendants, rightly in my view, concede that, in the light of his convictions, Beck, even had he still been alive, would have lost all credibility. This does not necessarily mean that the accounts of the claimants would automatically be accepted but that any denials from Beck uncorroborated by other evidence would have been afforded no weight in this context.
The passage of time, however, has also inevitably rendered it significantly harder to obtain evidence from staff (most of whom are new deceased) or former residents about any specific interactions between Beck and AB and Philips. Neither of these claimants nor the defendant has called any witnesses either to corroborate or refute the individual allegations made.
The death of Janner
This is a factor which plays an approximately equal level of significance with respect to the claims raised against Janner by all three claimants.
Over the years prior to his death, there was a growing body of evidence that Janner had sexually abused a number of children with whom he had come into contact over a period of many years. This much is plain from the information set out both in the Henriques Janner Report and the IICSA Janner Report. However, neither report was concerned directly with adjudicating on the truth of any or all of the allegations which had been made. Indeed, any such adjudication would have been inappropriate and unnecessary given the parameters of the issues to which the reports were formally directed.
The defendants have subjected the evidence of what is known of the allegations made by C1, C2 and C3 to detailed forensic scrutiny from which I have been invited to conclude that C1's allegations were "fraught with difficulty" and that there is not enough information about C2 and C3's allegations to afford the defendant the opportunity of providing a meaningful response.
I do not propose to perform a sedulous analysis of the relative weight to be afforded to each of the many points which the defendant seeks to make in this regard. The law of diminishing returns would soon be engaged in such a process. Looking at the position in the round, however, I am unable to accept the defendant's invitation to place "no reliance whatsoever" upon the relevant material. On the other hand, I do not conclude that the evidence in the reports is sufficient, without more, to establish that Janner was a sexual abuser and that these claimants were three of his victims particularly when any account in response from Janner himself is no longer available.
In reaching this conclusion, I take into account Janner's good character whilst recognising at the same time that its importance is potentially diminished by the fact that social status and reputation may possibly have been deployed as a deterrent, shield and camouflage against the making of prompt allegations of sexual abuse. Recent examples of this are too well known to require further particularisation.
The defendant has called evidence tending to show that Janner would not have had the opportunity to carry out the acts of abuse alleged against him. These include four former research assistants covering parts of the period between 1973 and 1985. The thrust of their evidence is that they accompanied him on his visits to his constituency and have no recollection of his visiting children's homes generally or the Beeches specifically.
Janner's son, Daniel, also spent time with his father in Leicester and says that his father was always accompanied on his visits there. He contends that Janner would never have associated with Beck who was a Liberal party councillor on Blaby District Council.
The defendant relies upon this evidence to suggest that Janner was a busy man who spent a high proportion of his time in his constituency accompanied by others leaving him with no opportunity to devote to the abuse of young people in care homes on the scale alleged. I have little doubt that these witnesses would have been relied upon in the event the case against Janner had ever come to trial. The defendant, however, concedes that, even taken as a whole, this evidence does not provide Janner with a cast-iron alibi.
It is only to be expected that Janner's son and former close political assistants would prefer that this court should make findings which would either exonerate him or, at least, allow me to conclude that the claims against him have not been made out. However, the focus of my attention at this stage of analysis is upon the exercise of my discretion to disapply the limitation period. This gives rise to an inevitable tension between strategic aims which must often arise in cases such as this. The more compelling the evidence still available to the defendant to defeat the substantive claims the stronger the claimants' arguments that the prejudice to the defendant brought about by the delay is modest. The less compelling such evidence is the greater the chance the claimants have of succeeding in their substantive claims in the event that the primary limitation period were disapplied.
In my view, the evidence relied upon in this context by the defendant is of some, but relatively limited, value on the substantive issue of the truth or otherwise of the allegations brought against Janner by the claimants. Importantly, however, I am satisfied that this type of evidence would have been of much greater assistance to the court but for the lengthy delays in bringing these claims. Memories would inevitably have been sharper and opportunities to correlate the timing of specific allegations of abuse to the whereabouts and activities of Janner and the company he was then keeping, whether through contemporaneous documentation or otherwise, would have been more readily susceptible to useful forensic scrutiny. In this regard, it is important to note that it is unnecessary for me to conclude whether such evidence would have assisted or undermined the defendant's case. That would involve impermissible speculation. I am, however, satisfied that the delay has significantly impaired the cogency of the evidence which is now capable of being deployed to assist the court to get to the truth.
Contemporaneous documentation relating to complaints
The evidential prejudice often caused by long delays may in any given case be offset by relevant contemporaneous documentation.
In this case, however, there is, in particular, no contemporaneous record of any complaint made by any of the three claimants of the abuse alleged to have been perpetrated upon them by either Beck or Janner. A substantial volume of material has been retained including social services records and day books relating to AB and Phillips but doubtless a significant quantity of other documentation is no longer available.
Of course, one perfectly plausible explanation for the absence of any documentary reference to contemporary complaints is that they were simply not recorded. Indeed, the defendant admits that its responses to complaints, in particular from external social workers with respect to the conduct of Beck were inadequate.
Accordingly, I take the view that little weight can be given to the absence of such records. However, that does not mean that each claimant's allegations that such reports were made thereby fall to be accepted by default. The fact that claims of abuse were raised in a forensic context only after a very considerable period of delay gives rise to the need to give careful consideration to the impact of such delay on the reliability of the claims that such reports were made less formally in the first place.
Of course, I must avoid falling into the trap, at this stage, of reaching substantive conclusions about whether each claimant has made out his case on such evidence as has been deployed before me during the course of the hearing. It is nevertheless permissible for me to have regard to any respects in which the prima facie strength or weaknesses of their cases is liable to render the prejudicial impact of the delay potentially greater either to them or to the defendant as part of the section 33 balancing exercise. I will deal with each in turn.
AB
I heard AB give evidence. I found that his evidence was prima facie capable of belief. There were however features which had the potential to cast a degree of doubt upon his credibility. These included the following:
(i) The medical experts agreed that AB suffered from a conduct disorder in childhood and a personality disorder in adulthood in a form which make it more likely that he may be prone to lying and deception than others without such conditions;
(ii) The details of the allegations of the scale of the abuse perpetrated, in particular by Beck, have fluctuated over time. His more recent accounts have suggested more frequent and repeated abuse than his earlier ones;
(iii) His identification of Janner as his abuser although, as I have already found, not so flawed as to undermine his case completely gives rise nonetheless to some level of uncertainty;
(iv) In his statement to the police in 1990, he expressly denied that he had been the victim of any abuse at the hands of Beck. I readily accept that in the case of AB, as with all of the claimants, there are arguable reasons explaining why formal complaints may not have been articulated earlier. On any analysis, however, the lack of earlier complaints has the potential to weaken the strength of his case and thereby render the risk of prejudice to the defendant greater;
(v) Even after Beck had been convicted of serious abuse of others in 1991 on the evidence of complainants who were believed at trial, it was many years before AB brought his claims;
(vi) It must not be forgotten that AB has a potential financial incentive to bring his claims. Although he denied that he had any such motive he was recorded by his GP to have said that he hoped to achieve sufficient damages to enable him to buy a flat.
In conclusion, in AB's case it could not be said that the strength of his evidence was such as to mean that the potential impact of the delay would have made little difference to the outcome of his claim against the defendant in respect of both perpetrators.
Phillips
I heard Phillips give evidence. He too was capable of prima facie belief. Again, however, there are confounding features:
(i) He has a criminal record and was most recently sentenced to life imprisonment in respect of two offences of rape committed in 2016. This feature has the potential to undermine his credibility;
(ii) He made a claim in 1994 limited to physical abuse by Beck and denied that he had been sexually abused to the doctor who reported on his behalf. Again, there may be plausible psychological explanations for his reluctance upon which a substantive conclusion would need to be reached in the event that the limitation period were to be disapplied but at this stage of the analysis it would not be appropriate to venture on such an assessment;
(iii) The extent of the physical abuse he now alleges to have suffered at the hands of Beck is significantly greater than that which he first reported to the doctor with respect to his claim in 1994.
In conclusion, as in AB's case, it could not be said that the strength of his evidence was such as to mean that the potential impact of the delay would have made little difference to the outcome of his claim against the defendant in respect of Beck and, a fortiori, Janner.
Betteridge
I heard Betteridge give evidence. He too was capable of prima facie belief although I found his evidence the most seriously open to problems of credibility compared to the other two claimants. These are the main confounding features:
(i) He suffered from a conduct disorder in childhood and a personality disorder in adulthood which the medical experts agree presents as a callousness and lack of empathy which means that he may lack some of the restraints that a person without such a diagnosis may otherwise feel about making a false allegation;
(ii) He has a history of dishonesty and, in particular, now admits that he lied both to psychiatric experts and treating psychiatrists about suffering from PTSD from his military service in Afghanistan and Iraq;
(iii) He struggled to give a satisfactory explanation as to why he was able to bring a claim in respect of both physical and sexual abuse against Beck in respect to which he first made disclosures to treating doctors in 1993 but felt unable to articulate his complaints against Janner at the same time. In their joint report, the expert psychiatrists agreed that there was no psychiatric explanation for such compartmentalisation. I was not impressed by Dr Shergill's attempt, for the first time in the witness box, to venture a psychological one. On this issue I preferred the evidence of Professor Maden to the effect that the compartmentalisation concept was devoid of medical credibility.
(iv) His evidence was that he reported abuse to a befriender, Kevin Smith, a social worker and the police but there are no remaining supporting records. He said that he told the befriender while he was still resident at The Beeches but the records reveal that he did not meet Mr Smith for the first time until long after he had left.
The impact of the delay on the assessment of causation and quantum
The claimants all say that the experts were agreed that in some respects the passage of time has made the assessment of any given claimant's condition and prognosis more straightforward than it would have been had the claims been assessed in the early 1990's. The experts have the benefit of a wealth of material now available that would not have been available if the claims had been assessed within a few years after the expiry of the primary limitation periods.
The exercise in assessing the claimant's medical condition is therefore one that can be undertaken with the benefit of a retrospective analysis, rather than prognostication. This potential benefit was emphasised by Johnson J in TVZ v Manchester City Football Club [2022] EWHC 7 (QB) at [195]:
However, any such advantages on the facts of this case are offset by disadvantages. They include the following:
(i) The very long passage of time between the alleged abuse and the assessment of the medical experts has, on balance, rendered the task of assessing causation more difficult and has contributed to genuine and important differences in views on the issue between the psychiatrists;
(ii) The medical presentation of the claimants has not been fully or consistently documented over the course of the years;
(iii) To varying degrees, on the claimants' own cases, they have not presented a full and complete history to their treating doctors over the years thereby making it harder for retrospective diagnoses to be reached in a forensic context;
(iv) It is by no means clear that the level of damages which the defendant would have been liable to pay is any lower than it would have been in the event that the claims had been made in time.
On the particular facts of this case, I am satisfied that the length of the delay has rendered the evidence relating to the task of the assessment of the causation and quantum of damages less cogent.
Conclusion on the impact of the delay on the cogency of the evidence
In conclusion on the matters to be taken into account under subsection (3)(b) of section 33 of the 1980 Act, I consider that this factor weighs heavily in the balance against the disapplication of the primary limitation period with regard to all three claimants and both perpetrators. This weight is clearly even greater in respect of the allegations against Janner than those against Beck. However, I must now turn to consider the other circumstances of the case with an open mind as to what impact they may have upon my assessment.
Reasons for the delay
In some personal injury cases, the determination of the reasons for delay is relatively straightforward and the assessment of their adequacy is uncluttered by any dispute over whether or not the injury was ever sustained in the first place. This situation arises, for example, in those cases in which the abuse is admitted but the defendant relies on a denial of vicarious liability.
In this case, however, it would be wrong for me to determine the issue of whether or not the assaults took place in advance of adjudicating on the outcome of the balance of the exercise of my discretion to disapply the primary limitation period. This is because any such finding would be based only upon such evidence which remains available to me which potentially lacks the cogency which it would otherwise have had but for the very delay in respect of which the limitation point is taken.
In this case, the reasons put forward by each claimant for his delay are inevitably predicated, in large part, upon the assumption that the abuse of which they complain in these claims was in fact carried out.
It is, indeed, well recognised that psychological injuries caused by abuse may operate so as effectively to disable any notional victim from commencing proceedings. In this context, each claimant relied upon the impact of the abuse they alleged they had suffered as, in part, lying behind their reluctance to start proceedings earlier. This was coupled with the contention that, given the contrast between their backgrounds and the status of those against whom the allegations were made, they did not think that they would be believed. A very full analysis is set out in the claimant's written submissions which I have carefully considered.
However, as I have already observed, the delay has already significantly undermined the cogency of the evidence about whether the abuse took place at all. The soundness of the reasons given for the delay is therefore contingent both upon the uncertain foundations of the fact of abuse and upon conflicting medical evidence as to the cogency of these reasons which is, itself, based upon the uncertain issue as to whether each claimant is to be believed.
I have considered carefully the history of each claimant as set out in very considerable detail in the final written submissions presented on their behalf. They run to 58 paragraphs in all, and it would be disproportionate for me to embark upon a minute textual exegesis of every point made.
Nevertheless, even taken at their height, they are not, in my view, such as to attract sufficient weight as to outweigh the other factors to which I must have regard in the exercise of my discretion and, in particular, the impact of the delay on the cogency of the evidence in the case. I return in this regard to the observations of the court in Murray at para 116:
In this case, I am satisfied that, in the case of each complaint and in respect of each perpetrator, the reasons relied upon are not such as to qualify or temper the prejudicial effect of the delay sufficiently for them to play a decisive role in the balancing exercise. I note that, in the circumstances of this case, the deleterious evidential impact of the delay and the reasons for the delay are, in fact, two quite distinct features and so the application of section 33 involves the exercise of an evaluative judgment which inevitably does not involve comparing like with like but I must nevertheless reach an equitable conclusion on the limitation issue.
The conduct of the defendant after the cause of action arose
This includes the extent (if any) to which the defendant responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant.
The claimants do not allege that the defendant deliberately withheld information from them although there were delays in producing documents and concluding enquiries (which were not complete until the day before the conclusion of final oral submissions). The claimants are critical of the defendant, with justification, for the late provision of a considerable volume of documentation.
There was a dispute as to whether late evidence relating to Rosemary Kay and Alan Mangham ought to be admitted. I would be minded to admit this evidence which was to the effect that neither reported to the IICSA that they had any recollection of relevant physical or sexual abuse at the Beeches. Mr Mangham said he had no recollections of either Beck or Janner. However, even if I were to exclude such evidence, it would have no impact on the final exercise of my discretion on the application to disapply.
In the event, I am not satisfied that the conduct of the defendant with respect to the provision of information or retention and disclosure of documentation has had a significant impact on the cogency of the evidence as a whole especially when compared with the deleterious effect of the claimants' own delays.
The extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages.
The claimants each knew from a very early stage that the injuries which they alleged they had sustained were capable of giving rise to an action for damages. Betteridge and Phillips had already made similar claims long ago and AB did not suggest that any significant delay was caused by the fact that he was unaware that he had a legal right to make a claim.
The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
This is not a factor which takes the balancing act significantly further in the claimants' favour. There is no suggestion that any of them received medical advice the nature of which contributed to the delay and they took no steps to obtain medical advice for the purpose of presenting any of these claims until long after the primary limitation periods had elapsed
CONCLUSION
I have reached the conclusion in respect of all claims by all three claimants against both Beck and Janner that it would not be equitable to allow their actions to proceed by the application of the test and all relevant criteria, including those expressly set out in section 33(3) of the Limitation Act 1980. In doing so, I have carefully considered all of the voluminous documentation to which the parties have referred me and to the detailed oral and written submissions. I have not attempted to address or resolve all of the secondary issues in order to maintain some level of proportionality in a judgment which is already long.
It is against this background that I repeat the observations which I made in Laporte v Commissioner of Police of the Metropolis [2014] EWHC 3574 (QB) :
In summary, therefore, of particular relevance to the claims relating to Janner, is that his death has had a significant impact on the cogency of the evidence as a whole which is inadequately mitigated by the existence of any compensating contemporaneous documentary evidence or by the combined recollections of those who worked with him at the relevant time.
The cogency of the evidence relating to the claims by AB and Phillips against Beck are less affected by the passage of time to the extent that Beck's death does not deprive the defendant of a witness with any residual credibility. Nevertheless, the combination of other features are such as significantly to undermine the cogency of the evidence by the very long delay in bringing proceedings.
The consequence of this finding is that it would be inappropriate for me to embark upon the process of adjudicating upon whether or not I would have found the claims to have been proved had there been no limitation issue taken. It follows that I make no factual findings that the claimants were abused or not abused by the perpetrators identified in these claims. Nor do I make any finding as to whether Janner was an abuser or not.
Accordingly there will be judgment for the defendant.