Haringey LB v FZO  EWCA Civ 180
The hitherto pretty successful trio of Michael Kent, Nicholas Fewtrell and Anthony Maden have been stopped in their tracks by the Court of Appeal which upheld the decision of Mrs Justice Cutts to waive the limitation period in a non-recent child abuse claim.
The Claimant had been groomed as a 13 year old by his PE teacher in the 1980s. The teacher who broke down his psychological barriers and engaged him in sexual activity beyond the age of consent and after he had left school. The perpetrator had pleaded guilty in 2012 and served almost 6 years in prison.
The Defendants used the well worn tactic of adding up minor inconsistencies in an attempt to persuade the judge that they were so heavily prejudiced that the time limit should not be extended. Mrs Justice Cutts found that in this case possible inconsistency in evidence did not render claimant entirely unreliable or untrustworthy of belief as the Defendant had submitted.
The case was subject to extreme attack of the type we have seen succeed in the past. Orchestrated by Michael Kent QC, Nicholas Fewtrell and using the evidence of the psychiatrist Professor Anthony Maden, the attack had to be extreme as the perpetrator had pleaded guilty and was still alive.
The Defendants team embarked on an all out assault on the Claimant by alleging he was variously mistaken due to past drug use, and they even alleged he had tried to persuade clinicians to re-categorise his diagnosis to enable him to avail himself of insurance. In the face of these attacks the judge was forced to make decisions on the claimant’s credibility which inevitably bled into her determination on limitation. The court of appeal had no sympathy for the Defendant’s argument in the Appeal that the judge had decided the claimant’s credibility when considering limitation (something judges are generally warned against). The court of appeal judges rejected this ground of appeal saying the Defendant’s legal team had brought it upon themselves and that the judge had, by their heavy handed tactics, been forced to evaluate credibility alongside limitation.
Professor Anthony Maden employed an argument “I don’t believe him because of all the many minor inconsistencies but if I’m wrong then he has suffered seriously due to the abuse alleged”. Here the judge was forced to analyse the claimant’s credibility and rejected Professor Anthony Maden’s characterisation of the claimant.
Mrs Justice Cutts dealt with Professor Anthony Maden’s allegations of inconsistency at paragraph 168-178 of her judgement. These paragraphs are produced below at the end of this article.
Professor Anthony Maden also alleged that Complex PTSD could not be a diagnosis as (1) it hasn’t been formally published in the formal psychiatric diagnosis book (ICD-10) and (2) because the claimant didn’t suffer a “trauma” by way of a threat to personal integrity. This was said to be on the basis that the claimant was groomed gradually and “consented” to the abuse. Mrs Justice Cutts rejected these arguments, preferring the more reasonable evidence of the Claimant’s expert psychiatrist Dr Jane O’Neill.
On the issue of causation Professor Anthony Maden also suggested that because the claimant maintained a friendship with the Defendant the contribution of the abuse to his psychological problems must have been minor. This was again rejected.
These were indeed extreme and audacious tactics from Messrs Kent, Fewtrell, using Professor Anthony Maden and I am pleased the Court of Appeal decided that Mrs Justice Cutts had given an exemplary judgement with which they would not interfere.
This judgement is hopefully the beginning of a recognition that Defendants are not as prejudiced as they like to make out to the courts. Judges please take note…
(Extract from the original judgement dismissing Professor Anthony Maden’s evidence. Perhaps more judges ought to take apart Professor Maden’s evidence in the same way).
Mrs Justice Cutts :
- Whilst I accept that there are some inconsistencies in the claimant’s account I do not accept that Professor Maden is correct on every occasion that he criticises the claimant on the basis of inconsistency. By way of example I do not accept that the school records from Highgate Wood are inconsistent with the claimant’s account. They are wholly silent on the issue of whether or not the claimant was disengaged with his education because of the abuse. That is to be expected as the other teachers were unaware of it. It is not in dispute that the abuse was in fact occurring. These teachers saw the claimant as often absent and unmotivated. They do not seek to say why. The two things are not in any sense mutually exclusive.
- Professor Maden was particularly critical of perceived inconsistencies in the claimant’s account of his childhood home circumstances. He was reluctant to accept that the family was as poor as the claimant has made out, pointing to the fact that he went to Franklin House, a private school, when he first left Highgate Wood and that his father was a director of a steel construction company which had a contract for work on the construction of the Barbican. He was sceptical about the claimant’s account that in spite of his success his parents did not come to watch him swim or act in the West End. He pointed out in his report that neither FZOJ nor the first defendant make any mention of the claimant appearing in Oliver in the West End which he would have thought would be a notable event, thus questioning whether such a thing happened at all.
- I accept that there are some inconsistencies in the evidence about the claimant’s family but they are not in my view of great consequence. I do not accept Professor Maden’s criticism of the claimant in this regard. This in part is because he has made assumptions as to what he would expect of parents in the same situation as those of the claimant. Although it is right to say that FZOJ did not speak in her witness statement about the claimant being in a West End production of Oliver she confirmed in evidence that he had. This was before he went to Highgate Wood School. There is nothing unusual in those circumstances in my view of the first defendant failing to mention the fact. FZOJ said her parents had been to see him in that production. She was less sure that her parents had been to see him swim. Professor Maden has expressed scepticism that parents would not watch a successful child of the claimant’s age saying it is “inherently implausible”. I do not accept that this is the case against the background of a hard working self-employed father and a mother with other children.
- As to the family’s means I am prepared to accept that the claimant has described their financial situation in somewhat dramatic terms but in my view this does not distort the general picture that his family were less well off in his younger years, becoming more comfortably off as he got older. There is nothing in FZOJ’s account to contradict that. Her evidence that in general terms her family was working class and not particularly well off but able to afford electricity and gas and put food on the table does not mean that the claimant’s account of them getting better off over time is untrue. She was not asked to concentrate on any particular period of her childhood, only asked about this aspect of her evidence in the most general terms.
- Finally it seems to me that Professor Maden in finding inconsistency in the claimant’s account has made assumptions not borne out by the evidence. It may be that the claimant’s father was a director of his own steel construction company but aside from the evidence of the claimant who described it as a “one person company” there is no evidence as to the size of it. He may have had a contract at the Barbican but again there is no evidence of the size of that contract in relation to the size of the project overall. There is thus no proper evidential basis to use that fact as gainsaying the claimant’s account that money was tight in his childhood. The same can be said for the fact that the claimant went to private school for a short time. Without knowing more about the school beyond the claimant saying that it consisted of two rooms in a church and any fees charged it is not possible to say that this fact again contradicts the claimant’s assertions about the means of his family.
- There are however four areas of the evidence where it seems to me that the defendants’ criticism of the claimant in terms of inconsistency or unreliability have greater force.
- The first concerns the claimant’s account that when the abuse started he was pre-pubescent and feared that he may be pregnant to the extent that he believed he felt an arm in the area of his abdomen. He said that his nipples were also getting bigger. He said that he spoke with his mother about this fear and she simply told him that he was not pregnant but going through puberty. The claimant spoke of this to emphasise his naivety concerning sexual matters at the time the abuse began. It is perhaps surprising that a boy of 13-14 years of age even in 1980 would believe he may be pregnant. The claimant’s account that he told his mother also does not sit easily with his evidence that he did all he could to avoid his parents finding out what was going on for fear that he would be despised and thrown out. There is no dispute that he was being sexually abused by the first defendant at this time. Whatever the circumstances of that it seems likely to me that he would not have wanted his parents to find out. In those circumstances I have difficulty accepting that he had this conversation with his mother. This is perhaps an example of him exaggerating and being overly dramatic in his anxiety to convey how naïve he was.
- In 1996 the claimant had one consultation with Dr Read, a psychiatrist, as a result of binge eating, bulimia and feeling depressed. Dr Read in a letter dated 27th November 1996 says that the claimant has had relationships with both men and women. The claimant has admitted that this was not true. He said that he could not bring himself to expose who he was or to disclose the abuse. He said in evidence that he told Dr Read that he had relationships with men and women because of his feelings of self-disgust. He did not want the psychiatrist to think of him in that way or to see the real him. He wanted him to be sympathetic with him. I accept this explanation. These lies are however of importance in this case where the question of causation rests on the accuracy and reliability of the claimant’s account to the psychiatrists who gave evidence in the trial. I have given this issue careful consideration and have come to the conclusion that the fact that the claimant lied to a psychiatrist in 1996 does not mean that he lied to the psychiatrists 20 years later in 2016-17. In 1996 the claimant did not disclose the abuse and was plainly not prepared to let the psychiatrist know the real him. In 2016-17 the position was totally different. The claimant had suffered a breakdown in 2011 and has not functioned well since. It is plain from his evidence and in what he has said to his treating psychiatrists that he is now desperate to feel better and to find a way forward with his life. That has caused him to be completely open about his past and to talk about things he has been reluctant to talk about for many years, including the abuse. This is supported in my view by his disclosure to the police in 2012 and the nature of the discussions he has had with his psychiatrists since. It follows that I do not consider that the lies he told in 1996 to Dr Read render him unreliable and incapable of belief now.
- The claimant in this trial has not hidden that he has in the past been a user of cocaine. There is however a discrepancy between his evidence that he last used cocaine in Spain in 2009 and records of what he said to medical staff at the Capio. A letter written by Dr Basquille, the claimant’s treating psychiatrist in the Capio, in July 2013 states under the heading “past psychiatric history” that the claimant in 2011 attempted suicide after a binge on alcohol, cocaine and benzodiazepines at a time when he was taking cocaine weekly which helped him to concentrate. Although it would usually be reasonable to assume that this must have come from the claimant it is in my view far from clear. There is a nearly contemporaneous document in the medical records dealing with the claimant’s use of cocaine in the handwritten admission note for his first admission to the Capio on 21st November 2011 in which it is noted “cocaine. 1g weekends. Snorting. Last used 3 days ago”. This does not however support that which is said by Dr Basquille in his letter two years later. No contemporaneous note from the Capio records any such binge. The claimant disputes that which is in Dr Basquille’s letter, saying that he had no such binge. He disputes that he took cocaine 3 days before his first admission to the Capio. In many ways it is difficult to understand why a member of the medical staff would have written that if it was not said. On the other there are other factual inaccuracies in the note. In my view the position is far from clear. I do not consider in those circumstances that the evidence on cocaine renders this claimant unreliable or unworthy of belief.
- The claimant has repeatedly said that he moved from job to job in his adult life as he found it difficult to integrate with his work colleagues and often felt isolated from them. He feared being found out for the evil person he was. Professor Maden and counsel for both defendants argue that such contemporary witnesses as there are from some of these companies do not support this view. There is force in these submissions. I do not however consider that these discrepancies are such that they should cause me to reject the claimant’s evidence as wholly unreliable. It is clear that, aside from a wobble in 1996, until 2011 the claimant was able to function reasonably well at work. He was clearly talented in the IT field. It is entirely possible that a person can see themselves very differently from the way they are seen by others. It is realistic to assume that the claimant’s work colleagues did not see him every minute of every day and that they were not socialising every single night. I do not therefore consider that the failure of some colleagues to see that the claimant felt isolated renders him such an unreliable witness and historian that his claim could not succeed.
- In conclusion I find that whilst there is some inconsistency in the evidence and that it can properly be said that at times the claimant has exaggerated or over-dramatised aspects of his evidence these are not such that the claimant is rendered so unreliable or incapable of belief that his claim must fail. They are matters to which, if the limitation period is disapplied, I would have careful regard in assessing the claimant’s evidence and the extent to which I accept it.
You can find the full decision by clicking here.