Supreme Court vicarious liability ruling applied in Scottish abuse claim

In this blog post, Samuel Cuthbert considers the case of JXJ v The Province of Great Britain of the Institute of Brothers of the Christian Schools (“The De La Salle Brothers”) [2020] EWHC 1914 (QB).

This is the first sexual abuse case applying the Supreme Court’s decision on vicarious liability in Various Claimants v Barclays Bank [2020] UKSC 13. It is also technically “international”, because it involved Scottish law. In that respect, it has a number of interesting comments about the Foreign Limitation Periods Act 1984 and Scotland’s “mirrored” version of s. 33 Limitation Act 1980 in historical abuse cases.

The Facts

Between 1972 and 1974, the Claimant was a pupil at an approved boarding school (the “School”) to which juvenile offenders and children in need of care and protection were sent by order of a juvenile court. A board of managers appointed by the Catholic Archbishop of Glasgow was responsible for the management of the School. Many of the staff, including senior staff members, were members of the Institute of the Brothers of the Christian Schools (the “Institute”). The Institute is a monastic order focussed on providing Christian education, whose members are referred to as the de la Salle (“DLS”) brothers.

The Claimant was repeatedly sexually abused by a lay member of staff, James McKinstry, during his two years at the School. McKinstry was convicted for those assaults. The Claimant alleged that he was also assaulted by DLS brothers teaching at the School. The Claimant alleged that the Defendant was vicariously liable for:

  1. The sexual assaults perpetrated by McKinstry;
  2. The acts and omissions of the headmaster of the School, Brother Alphonsus, in exposing the Claimant to the risk of abuse and/or in failing to protect him from that abuse; and
  3. Further assaults committed by Brothers Pius and Patrick and jointly by a group including Brothers Alphonsus, Patrick, Cuthbert, Pius, and Benedict, together with McKinstry.

The Defendant pleaded a limitation defence and denied that it was vicariously liable for the assaults of McKinstry. Further, it accepted vicarious liability for Brother Alphonsus’ breach of duty but denied such a breach occurred. Similarly, it accepted vicarious liability for any assaults committed by the DLS brothers, but denied any such assaults occurred.

In previous litigation against the Institute (Various Claimants v Catholic Child Welfare Society [20112] UKSC 56), the Supreme Court had held the Institute was jointly vicariously liable for assaults committed by brothers. That case did not address the question whether the Institute was vicariously liable for staff who were employed by the managers but were not brothers.

Applicable Law

The events giving rise to the cause of action preceded both the Rome II Regulation and the Private Law (Miscellaneous Provisions Act) 1995, such that the common law choice of law rules were determinative of the applicable law.

These rules set out that Scots law governs substantive matters (subject to the rule of double actionability) and the law of England and Wales (“English law”) governs procedural matters. Limitation was said to be governed by Scots law following s. 1(1) of the Foreign Limitation Period Act 1984 (the “1984 Act”). This meant that the Scots law provision of the Prescription and Limitation (Scotland) Act 1973 (the “1973 Act”) applied, as inserted by the Limitation (Childhood Abuse) (Scotland) Act 2017 (the “2017 Act”). This position was accepted in the Defence.

However, on the morning of the first day of trial, counsel for the Defendant filed a note indicating a contrary position. This new position was based on s. 7(3)(b) of the 1984 Act, which said:

Nothing in this Act shall—

(b) apply in relation to any matter if the limitation period which, apart from this Act, would have been applied in respect of that matter in England and Wales expired before that day.

The Defendant argued that by operation of s. 7(3)(b) of the 1984 Act, the 1984 Act could not apply because the limitation period which that act would have implemented would have expired in January 1983. As such the common law choice of law rules should apply and given that limitation is a procedural matter in both Scots and English law, English law should govern limitation.

Additionally it was argued that where the double actionability rule applies it is a matter “in the determination of which both the law of England and Wales and the law of some other country fall to be taken into account” for the purposes of s. 1(2) of the 1984 Act. The result was that both limitation laws apply but it is only necessary to consider the limitation law more advantageous to the Defendant, which in this case was English law. Defendant counsel rejected the opportunity to apply to amend his pleadings to reflect the new position.

The trial did not proceed on the basis of the Defendant’s new position, but rather proceeded on the pleaded footing that the only law governing limitation was law. Mr Justice Chamberlain set out that this was appropriate for three principal reasons:

  1. In the law of England and Wales (as in Scots law), limitation is a procedural defence and so the general position is it must be pleaded. Where it is pleaded, it has the effect of barring the Claimant’s remedy. If not pleaded, that it could have been pleaded has no bearing on the existence of the cause of action or the court’s ability to hear the claim.
  2. The Parties proceeded from the outset on the basis that the 1984 Act applied; it was the basis on which the joint expert report of Mr Sheldon was obtained, factual evidence prepared, and on which the split trial was ordered.
  3. It is not clear that the 1984 Act does not apply. In previous historic abuse cases which happened in a foreign jurisdiction, the assumption has been that the 1984 Act applies. Such questions often proceed by agreement between the parties, and the legal basis for the agreement does not give the court reason to go behind its own motion unless the matter is jurisdictional (in this case, it wasn’t). If the 1984 was applicable, the Defendant could have pleaded a limitation defence in both Scots and English law. That being so, the position is conceptually comparable to that of a Defendant who has not pleaded limitation and the case proceeds on the pleaded basis though a limitation defence may have been available.

The Dispute

The Defendant admitted the assaults of which McKinstry was convicted but, based on JXJ’s inconsistent accounts and the results of JXJ’s psychiatric assessments, denied that:

  • McKinstry penetrated JXJ’s anus with his penis;
  • Brother Alphonsus was present during McKinstry’s sexual assaults on JXJ;
  • Brother Alphonsus was aroused or masturbating when JXJ reported the assaults to him;
  • Brother Alphonsus breached his duty of care to take reasonable steps to protect JXJ;
  • JXJ was subject to physical assaults by DLS brothers.

The Evidence

Mr Justice Chamberlain made a number of notable findings about the evidence, and there is value in glossing those which most pertinently engage difficult issues as regards the laws of evidence. The learned judge also gave judgment in BXB v Watch Tower Bible and Tract Society of Pennsylvania [2020] EWHC 156 (QB) in which he endorsed the relevance  of Leggat J’s judgment at [18] in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) as regards the fallibility of memory. In this case, as in BXB, Mr Justice Chamberlain makes plain that a proper awareness of the fallibility of memory does not relieve judges of the responsibility to make findings of fact based on all the evidence.

Mr Justice Chamberlain did not find to be significant the inconsistencies between the description of what McKinstry did in statements to the police and the description he gave in evidence: “It is inevitable when recounting events of this kind that the description given on one occasion will be slightly different from that given on a subsequent occasion”. This must be set against the list of inconsistencies in JXJ’s allegation which were deemed to be more concerning. Of particular note was (i) the allegation featured at bullet point three above, which the learned judge found to be an instantiation of the Gestmin principles in virtue of JXJ having represented a contrary position to the police in 2003, and (ii) JXJ’s failure to mention further abuse suffered at the hands of his paternal uncle which would have been “material to causation and quantum in these proceedings”.

Mr Latham gave evidence corroborating a number of JXJ’s allegations. However, a series of email exchanges between the two men in 2015 and 2018 were disclosed to the court in which they mentioned the ongoing litigation. The judge found that it is “a familiar feature of human interaction that one can honestly try and to avoid discussing a particular topic, and honestly believe one has succeeded, whilst in fact having discussed the topic more or less extensively” and that for evidence of events between 45 and 47 years ago, there is a substantial risk of these discussions affecting Mr Latham’s account as per Gestmin.

Limitation

Mr Justice Chamberlain’s judgment gives a detailed exposition of the Scots Law position both prior to and since the passing of the 2017 Act. According to the expert evidence:

It is plain that the [2017] Act was intended to invert the legal or persuasive onus in relation limitation – it is now for the defender to show that the action should not proceed rather than for the pursuer to show why it should… The starting point in the court’s analysis now requires to be that there is no limitation period and that the pursuer in case is covered by s. 17A he is entitled to bring an action at any time. If the defendant maintains under s.17D(2) that a fair trial is ‘not possible’, s/he requires to ‘satisfy’ the court of that proposition. In cases of retrospective application of s. 17A, such as the present case, the defender requires to ‘satisfy’ the Court under s. 17D(3) there would be substantial prejudice to the defender if the action were to proceed – and the court requires to be ‘satisfied’ that the action should not proceed notwithstanding the pursuer’s interest in that matter.

It further concludes that:

Even if a defender can satisfy the court that substantial prejudice would occur, the court can still decline to dismiss the case if the pursuer’s ‘interest in the action proceeding’ outweighs any prejudice… The policy aim of the 2017 Act seems to have been to exclude from the court’s consideration delay resulting from [the] sequelae of abuse […] the new provisions set up a rebuttable presumption that there is a good explanation for any delay in bringing a claim, removing or restricting the emphasis laid in many of the cases on the conduct of the pursuer

The judge set out nine points by which the new Scottish provisions should be applied. There is little value in rehearsing them here, but their application to this case is of interest. All parties accepted, and the judge agreed in principle, that the application of the tests in s17D(2) and (3) may yield different results in respect of the different allegations brought by JXJ.

As regards the sexual assaults perpetrated by McKinstry, the Defendant admitted McKinstry’s convictions and the difference between the admissions and the allegations was held to be insignificant. The prejudice was therefore not “substantial”. In relation to the second aspect of JXJ’s claim, the judge held that a fair trial was not possible because the death of the allegedly negligent headmaster deprived the Defendant of a fair trial, in spite of JXJ’s ‘weighty’ interest in the action proceeding. It was found that it would also be impossible for a fair trial to proceed in relation to the physical assaults, which comprised the third remaining element of the claim, because all but two of the individuals against whom allegations were made were dead and the Defendant “could do no more than put his pursuer to proof”. Resultantly, only the first allegation featured above would proceed.

Vicarious Liability

The judge made four initial findings of fact:

  • Legal responsibility for the operation of the School lay with the managers, though the provincial (who must who must be taken to have been acting on behalf of the Institute) also exercised considerable de facto control over the operation and organisation of the school;
  • The provincial understood himself to be able to give instructions to the headmaster about the exercise of his functions as headmaster and gave such instructions;
  • The instructions covered all aspects of the organisation of the School, including the employment and deployment of staff;
  • The provincial also corresponded directly in relation to the School with HM Inspector of Schools, who regarded the School as “administered” by the Institute and saw the DLS brothers as “very much in charge”.

The court applied the test set out by Lady Hale at in Various Claimants v Barclays Bank [2020] UKSC 13, [2020] 2 WLR 960:

Two elements have to be shown before one person can be made vicariously liable for the torts committed by another. The first is a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other. Historically, and leaving aside relationships such as agency and partnership, that was limited to the relationship between employer and employee, but that has now been somewhat broadened. That is the subject matter of this case. The second is the connection between that relationship and the tortfeasor’s wrongdoing. Historically, the tort had to be committed in the course or within the scope of the tortfeasor’s employment, but that too has now been somewhat broadened. That is the subject matter of the Wm Morrison case.

JXJ’s case turned on the first element. It was accepted that if the court found there was a relationship akin to employment between McKinstry and the Institute, then the necessary connection between that relationship and McKinstry’s wrongdoing was established. However, no such relationship was established. It is simplest to cite the judge’s reasoning directly here:

[138]“Staff members such as McKinstry took no vows and made no commitments to the Institute. They did not have to abide by its rules. The Institute could not, for example, require them to go to a different school, even contingently on their being offered employment there. It was for them to choose whether to enter into a contract of employment at a particular school. If they did so, they had no obligation to surrender their earnings to the Institute. By the same token, the Institute owed no obligation to look after them, whether during the course of their employment or afterwards. On no view could they be regarded as akin to partners in the “business” of the Institute. If the Defendant is to be held liable for the wrongs committed by McKinstry, it must be on a very different basis from that on which the Institute was held liable for the wrongs committed by its brothers.”

[140] “[…] the Institute did not employ any of the School’s staff. It had a relationship akin to employment with some of those staff (those who were brothers) because of the reciprocal obligations I have described and because the Institute and its brothers were engaged in the common enterprise of providing a Christian education to boys. But it had no relevant relationship with McKinstry or any of the other staff of the School who were not brothers. They were an integral part of the work, business and organisation of the School, but not of the Institute.

Further, as regards the Claimant’s submission that staff who were not Brothers were necessary for the functioning of the business, the Judge found that there is no principle of law that a business or organisation is vicariously liable for to all those without whom it would be unable to operate. It was also found that the headmaster took instructions from the provincial who acted on behalf of the Institute, and exercised a degree of influence over the organisation of the School, including decisions on the employment and deployment of staff. However, this was not sufficient to establish a relationship of employment. The highest such point can be put is that it reflects the fact that the headmaster and the other teachers who were also brothers owed obligations both to the managers and to the Institute; and this was recognised by external actors such as HM Inspector of Schools, who accordingly dealt directly with the provincial on occasion.

In Barclays, Lady Hale set out that in doubtful cases Lord Phillips’ “five incidents” in the Christian Brothers case would be instructive. That the defendant is more likely than the tortfeasor to have the means to compensate the victim was dismissed for providing no principled justification for the imposition of vicarious liability. The control of the Defendant over McKinstry was, as above, also dismissed. The remaining three are captured by Lord Reed in Cox v Ministry of Justice [2016] AC 660 which asks whether the harm was done whilst carrying out an integral part of the defendant’s business activities and for its benefit, and where commission of the wrongful act was a risk created by the defendant in assigning those activities. Such a test, as per the preceding discussion of the structure of the school’s governance, could not be made out.

Comment

There is much to be taken from this judgment. First, for international law practitioners, this serves as a learning exercise of the dangers of challenging the agreed applicable law concerning limitation on the morning of the first day of trial. Such a challenge may be met with the expectation of an ad hoc application to amend pleadings accordingly. That the point arose here appears to be because this was one of those rare cases in which the English law of limitation was less favourable to the Claimant than the alternative foreign law. Second, it underlines the importance and application of Gestmin in historic abuse cases. Third, this is only the second application of the new Scots law statutory provisions on limitation albeit they have been applied in a case brought in England. Mr Justice Chamberlain’s approach of applying the new limitation test to each element of the claim and discarding those for which it would not be possible to proceed to a fair trial is novel, and it will be interesting to see whether the Scots courts will mirror his approach.

Fourth, this judgment is the first application of Lady Hale’s formulation of the test for vicarious liability. Whilst all questions of vicarious liability turn on their facts, the structure of the business through which the Defendant and the tortfeasor were connected was of notable significance in this case and will likely be so for future cases too. Further, Mr Justice Chamberlain’s decision restates that the courts will not stretch what is meant by a “relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other” in order to find a remedy for a Claimant who has suffered terrible abuse. To that end, this judgment is an unapologetic application of Lady Hale’s test and serves to remind that the law of vicarious liability is no longer expanding at the rate it did previously.

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