Loughborough Congregation of Jehovah's Witnesses — Court Judgment (2015)

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IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

Royal Courts of Justice Strand, London, WC2A 2LL

Date: 19/06/2015

Before :

THE HONOURABLE MR JUSTICE GLOBE

Between :

and -

A

THE TRUSTEES OF THE WATCHTOWER BIBLE AND TRACT SOCIETY

Claimant

First Defendants

THE TRUSTEES OF THE LOUGHBOROUGH BLACKBROOK CONGREGATION OF JEHOVAH'S WITNESSES

Second Defendants

THE TRUSTEES OF THE LOUGHBOROUGH SOUTHWOOD CONGREGATION OF JEHOVAH'S WITNESSES

Third Defendants

James Counsell and Benjamin Bradley (instructed by KathleenHallisey AO Advocates) for the Claimant Adam Weitzman and Jasmine Murphy (instructed by Richard Cook, Legal Department, Watch Tower) for all Defendants

Hearing dates: 3-16 February 2015

Judgment MR JUSTICE GLOBE:

Anonymity

On 3 February 2015, although the trial was held in public,the following anonymity order was made.

"No party or non-party shall report or disclose the name, address or any other information which might tend to lead to the identification of any person who was a child or young person at the time of the events which form the subject matter of this claim and who was alleged to have been sexually abused by Peter Stewart without first applying to the judge to vary this order."

The order was made to protect the interests of those concerned in view of the nature of the allegations that were being made in the case.The order is continued pursuant to CPR 39.2(4).The judgment accordingly has been anonymised.The order will cease to apply in relation to anyone who notifies the court in writing that they are content for their names to be identified.In addition, there will be liberty to apply to enable any interested party to challenge the order for anonymity, on notice to the parties' solicitors, so that they can notify those whose rights may be affected by any disclosure of their identity.

Introduction

The claimant, who is now 29 years of age, claims damages for personal injury and loss arising out of being sexually assaulted by Peter Stewart, now deceased, between 1989 and 1994, when she was between about the ages of 4 and 9. Quantum has been agreed subject to liability.

The first defendants are the over-arching body of the second and third defendants. It is common ground that, if the second and/or third defendants are liable, then the first defendants will satisfy the judgment on behalf of the other defendants. The Blackbrook and Southwood Jehovah's Witness Congregations are the direct or indirect successors of the congregation that was originally known as the Loughborough Limehurst Jehovah's Witness Congregation, then split into two congregations known as the Limehurst Jehovah's Witness Congregation and the Garendon Park Jehovah's Witness Congregation, which congregations are central to the factual matrix of the case.

The claimant's case has been presented in two ways.

First, it is claimed that the defendants are vicariously liable for the sexual assaults committed by Peter Stewart when he was or had been a Jehovah's Witness ministerial servant ("the assault claim"). The primary limitation period expired on 4 September 2006 (i.e. three years after the claimant attained the age of 18). The action was commenced in March 2013. The claimant seeks an order for the disapplication of the limitation period under section 33 of the Limitation Act 1980 ("the Act").

Secondly, it is claimed that the defendants are vicariously liable for the actions of the Limehurst Elders who, in 1990, negligently failed to take reasonable steps to protect the claimant from Peter Stewart once they knew he had sexually assaulted AM, another child in the congregation ("the safeguarding claim"). The claimant contends that the "the safeguarding claim" has been brought within the primary limitation period pursuant to sections 11 and 14 of the Act on the basis that the claimant did not have the requisite knowledge to bring "the safeguarding claim" until the defendants' witness statements were received in March 2014. Alternatively, the claimant seeks an order for the disapplication of the limitation period under section 33 of the Act.

In accordance with the guidance given in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516, it was agreed between the parties that the correct approach was for the evidence to be heard before making decisions as to disapplication of the limitation period under s.33 of the Act. Having heard the evidence, I bear in mind the additional guidance (at paragraph 21 of the judgment of the court) that, in circumstances where I am determining a section 33 application along with the substantive issues in the case, I should take care not to determine the substantive issues, such as liability, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. To do otherwise would be "to put the cart before the horse".

The issues to be determined and the order in which they are to be determined are therefore as follows:

Limitation - section 14 "knowledge"

Limitation - section 33 "disapplication"

Vicarious liability - "the assault claim"

Vicarious liability - "the safeguarding claim"

Before dealing with the issues, it is necessary to set out the factual matrix of the case in relation to the general structure and governance of Jehovah's Witnesses and the relevant history of what happened to the claimant. Save where specifically stated, the facts are agreed or not disputed.

The organisational structure of Jehovah's Witnesses is modelled on first century Christianity as described in the bible. Jehovah's Witnesses rely on passages from the bible to set their policy and religious practices. This distinguishes them from other religious denominations who use the bible to shape thinking, guide behaviour and teach lessons, but do not use it directly to set policy and religious practices. As a result, written documents, including worldwide monthly Jehovah's Witness publications such as Watchtower and Awake!, that describe the policy and religious practices of Jehovah's Witnesses, often quote biblical references.

Worldwide Jehovah's Witnesses now comprise about 8 million people who live in many different countries. There is a hierarchical organisational structure. A Governing Body coordinates organisational arrangements and doctrinal matters (Acts 15). The Governing Body supervises over 100 branch offices worldwide, each of which is supervised by a branch committee. One of the branch offices is the United Kingdom office based in London.

The branch office has a branch committee.The committee oversees districts within the branch and assigns a district overseer to oversee each district. Within each district, there are about 12 circuits.A circuit overseer is assigned to oversee each circuit. Within each circuit, there are about 20 congregations. Within each congregation, there are elders, ministerial servants and members of the congregation.

Notwithstanding its hierarchical organisational structure, in accordance with the model of the early Christian communities as described in the bible, there is no hierarchical structure of setting apart a clergy class from the laity. All members are expected to teach and can lead bible study. Congregational responsibilities are split between "overseers and ministerial servants" (Philippians 1:1). Overseers are also referred to as elders. Generally, there are a number of elders and ministerial servants in each congregation. Members of the congregation are called "publishers" and call each other "brother" and "sister" (Matthew 23:8-12).

Elders are selected for appointment based on scriptural qualifications and will be mature spiritual men who have been baptised for many years, will be viewed as good examples in Christian living and previously will have served as ministerial servants (1 Timothy 3:1-7 and Titus 1:5-9). However, elders are not considered to be closer to God or superior persons (Job 32:21,22). They do not adopt an elevating title, such as Father, Reverend or Pastor, or take a superior position with reference to other members because there is only one leader who is Christ (Matthew 23:8-11). As such, they are not required to make any particular pledge or promise of obedience or loyalty to others within the governing structure of the organisation and there is therefore no relationship between an elder and a circuit overseer in the way that there is, for example, between a pastor and a bishop. They are not to be viewed as masters over others, but as fellow workers (Romans 12:8; 1 Corinthians 3:5; 4:1-2) who are appointed to shepherd the congregation of God (Acts 20:28). They therefore have no unique or advanced academic background and are volunteers of the congregation who are appointed to do the work of shepherding and overseeing spiritual matters (Watchtower 1 October 1977). Their primary role is to guide and protect the congregation spiritually, including taking the lead in evangelising and presiding over all types of congregational meetings.

Ministerial servants are members of the congregation who are also selected for appointment based on scriptural qualifications which require them to be serious individuals who hold the secret of the faith with a clean conscience (Timothy 3:8-12; 12:13). They provide voluntary practical assistance to the elders and service to the congregation. They care for organisational and physical tasks that must be handled in the congregation. Tasks include keeping the Kingdom Hall clean and tidy, arranging the platform and microphones as circumstances require, manning and controlling the sound system and microphones for the use of the congregation, organising and making available literature for the congregation, serving as attendants at meetings, assisting in emptying collections boxes, keeping accounting records for the money, managing records to help to co-ordinate field service and any other tasks to which the elders may assign them from time to time (The Organised Book: Organised to Accomplish Our Ministry, chapter 6 p.55-59).

There is evidence in the case that ministerial servants are not supposed to have any independent pastoral or shepherding role.The evidence comes from a number of past and present elders, particularly from Paul Gillies, who is a trustee of the First Defendants, a member of the British branch committee and an overseer.

It also comes from Dr Monica Applewhite who has written a report about the structure and governance of Jehovah's Witnesses. She is an American expert in clinical social work whose previous experience and expertise in relation to Jehovah's Witnesses is limited to being requested by the Watchtower Society to review three separate Jehovah's Witness civil liability cases. Whether or not a ministerial servant is supposed to have any independent pastoral or shepherding role is an issue in the case. Specifically, it is an issue whether Peter Stewart was acting in any such role towards the claimant and her family at the material time. In so far as reliance is placed by the defendants upon The Organised Book: Organised to Accomplish Our Ministry chapter 6 p.55-59, it is worthy of note that at p.56 it states "their work within the congregation generally involves non teaching responsibilities" (my emphasis) and at p.58-59 it states that, "if there are not enough elders to conduct the congregational book studies, some of the more qualified ministerial servants are used as study conductors to care for assigned groups. They may be assigned to handle parts in the service meeting and the theocratic ministry school and to deliver public talks in the local congregation. Other privileges may be extended to some of the ministerial servants where there is particular need and they meet the requirements for the assignment".

Jehovah's Witness meetings are generally held in a place of worship called "Kingdom Hall". They are open to the public. Meetings are held twice each week, once on a weeknight and once on a Saturday or Sunday. On a weeknight, the programme consists of the congregational bible study, the theocratic ministry school and the field service meeting. In the 1980s and early 1990s, the congregational bible study was called the congregational book study and normally occurred in small groups, either at Kingdom Hall or in members' private homes. The format for that activity was a one hour question and answer discussion of a bible topic using a printed publication of Jehovah's Witnesses. The theocratic ministry school includes talks from the elders with contributions from members about various bible readings. The field service meeting relates to house to house activities. At a weekend, the programme consists of the public meeting and the Watchtower study. The Watchtower study is a one hour question and answer discussion of a bible subject using an article in the Watchtower magazine. Generally, an elder takes the lead in teaching at congregational meetings. Members have the opportunity to give comments and to speak for a few minutes during the meetings. Families remain together. There are no separate arrangements for children. Parents are primarily responsible for their own children's secular and spiritual education (1Timothy 5:8; Deuteronomy 6:6-7). There is no bar, though, on parents seeking additional help from others.

Bible study is conducted in a variety of ways, including group bible study, family bible study, individual study and the door to door ministry of field service. Regular door to door ministry is expected to be the life of all Jehovah's Witnesses (Acts 20:20). It is not limited to religious leaders or a chosen few, but should be carried out by all (Acts 5:42). Members are instructed to go and make disciples of all people (Matthew 28:18-20). It is performed voluntarily and without pay (Matthew 10:7-10).

Jehovah's Witnesses strive to live by a strict code of moral conduct based on the scriptures. However, when a member of the congregation is accused of committing a sin, the body of elders will assign two elders to investigate if there is evidence that the sin was committed.

If there is, the body of elders will appoint a judicial committee of three or more elders to provide spiritual assistance to the person who committed the sin. If they find the individual genuinely repentant they will provide spiritual counsel and reproof to help avoid recurrence of the sin and may restrict the individual from full participation in meetings (Acts 26:20; Watchtower 1976, 1 December 1981, 15 September 1994, 15 July 2007). There may be an announcement to the congregation during a regular scheduled meeting that the individual has been "reproved", but the sin itself should not be mentioned (Shepherd the Flock of God p.98; Watchtower 1 December 1976). If the reproved individual is an elder or ministerial servant, he will be "deleted", that is removed, from that position and an announcement of the deletion should also be made to the congregation at a meeting (Shepherd the Flock of God p.42; Watchtower 1 December 1976). If the judicial committee finds an individual is not repentant, he or she may be "disfellowshipped", that is excommunicated, from the congregation. In that case, an announcement should be made to the congregation that the individual is no longer one of the Jehovah's Witnesses, but again the sin itself would not be mentioned (Shepherd for The Flock of God p.101). The information received by and the deliberations of a judicial committee are supposed to remain confidential (Proverbs 25:9). Those who are disfellowshipped should be "shunned" by all those who wish to have a good relationship with Jehovah (Pay Attention to Youselves and to All The Flock 1991 p.103).

The Facts

The claimant's mother married the claimant's father in 1967. They were baptised as Jehovah's Witnesses in the early 1970s, at which time they joined the Limehurst Congregation in Loughborough. They had four children, two boys born in 1968 and 1970 and two girls born in 1977 and 1985. At the time the claimant was born in 1985, her brothers were teenagers and her sister was 8 years old. Soon afterwards, the claimant's older brother left home.

During the 1980s, there were matrimonial difficulties.The claimant's father was disfellowshipped because of his behaviour towards the claimant's mother.The matrimonial difficulties ultimately led to him leaving the matrimonial home in East Leake in 1989.At around the same time,the claimant's younger brother left home. The claimant's mother continued living at the matrimonial home with her two daughters who,in 1989 were 12 and 4 years of age.

According to the claimant, she was subjected to sexual abuse by Peter Stewart from 1989 when she was 3 or 4 until 1994 when she was 9.The abuse occurred at least once a week. Throughout the five years, she was in Peter Stewart's company up to four or five times a week in relation to various activities at Kingdom Hall, at field service, at other people's homes, at her own home, at Peter Stewart's home and once at the Don Valley Athletic Stadium in Sheffield. The claimant recollects Peter Stewart being with her at Kingdom Hall with her on Tuesdays, Thursdays, Saturdays and Sundays at meetings, at other times when preparations were being made for meetings, at book study groups and at times when the hall required cleaning.Additionally, she recollects Peter Stewart regularly carrying out field service with her, most particularly on Tuesdays and Saturdays,taking her with him and remaining in her company when her mother was doing extra auxiliary field service,leading group bible study sessions at other people's homes mainly on Tuesdays, being in her own home on many occasions during the week leading family bible study sessions, personal bible study sessions and Watchtower study sessions in place of her absent father and by way of assistance to her mother, leading family bible study sessions at his own home normally after field service and being present at the Don Valley Stadium where there was a convention for Jehovah's Witnesses taking place.

The abuse consisted of sexual touching of the claimant's nipples and vagina on top of and underneath her clothing. There were frequent occasions of digital penetration of her vagina and other occasions of oral sex upon her and making her perform oral sex upon him. Once, he rubbed his erect penis against her naked vagina and attempted to penetrate her vagina. Throughout, he told the claimant it was their secret and that she should say nothing about what was happening. He told her that she would be damned as a sinner if she said anything to anyone.

It is accepted by the defendants that Peter Stewart sexually abused the claimant and there is no dispute about the nature of the acts.The issue is where and when it happened and what activities were occurring at the time it happened. There is no dispute about the account given by the claimant in her first statement, wherein she describes the abuse taking place either at her own home or Peter Stewart's home. There is an issue as to the accuracy of her second statement, wherein she expands upon the abuse and includes the additional information already summarised. The defence submission is that there is no reference to such details in her earlier statement. They are not backed up by independent documentation or any other evidence, cannot be relied upon and should not be accepted. The submission made on behalf of the claimant is that the contents of her statement have been supported by her oral testimony and that her evidence can be relied upon and accepted.Her mother provides support in so far as Peter Stewart had opportunity by participating in all the activities referred to by the claimant. Her statements and evidence confirm that, save for a few weeks in 1990 when Peter Stewart was not allowed to take bible studies and field study, he was as actively involved in leading and participating in the activities of Jehovah's Witnesses as alleged by the claimant.

The abuse stopped in 1994 when Peter Stewart was arrested and later convicted of and imprisoned for sexually abusing a young female relative and a young boy in the congregation. The claimant continued to keep her silence at that time. Ignorant of the full facts, the claimant's mother remained supportive of Peter Stewart and wrote a character reference on his behalf to the court at the time he was sentenced.

Shortly before Peter Stewart's release from his prison sentence, the claimant found out about his imminent release. It affected her badly and eventually she told her mother what had happened. In May 2000, her mother wrote to Peter Stewart telling him that she knew he had sexually abused the claimant. On 7 June 2000, he replied. In his letter, he admitted the abuse and apologised for the hurt and damage he had caused to the claimant. Upon receipt of the letter, the claimant's mother contacted an elder of the congregation. When nothing was done, she went to the police. In May 2001, the police interviewed the claimant. When the police thereafter went to see Peter Stewart about the allegation, they discovered his recent death.

Limitation - s.14 "knowledge" in relation to the "safeguarding claim"

The "safeguarding claim" is based upon the proposition that the Limehurst Elders failed to take reasonable steps to protect the claimant from Peter Stewart after they became aware in 1990 that he had sexually assaulted AM, another child in the congregation. It is the claimant's case that she only had the requisite knowledge to bring the claim when she read what had happened in 1990 in the defendants' witness statements that were served in March 2014.

There were thirteen statements served by the defendants in March 2014. They were all from past and/or present elders and ministerial servants.A number referred to the fact that Peter Stewart had been reproved, deleted and/or had resigned as a ministerial servant in 1990. Two elders, Robert Berry and Alan Orton, referred to the details of what happened in 1990.

Robert Berry stated he had been approached in 1990 by a member of the congregation who had told him that Peter Stewart had interfered with his daughter, AM, by touching her through her underwear. Robert Berry reported the allegation to the presiding elder, Anthony Hodgkinson, who asked him to go with another elder to see Peter Stewart. Robert Berry went with another elder, whose identity he can no longer remember, to see Peter Stewart and put the allegation to him. Peter Stewart admitted the allegation. Robert Berry reported back what had been said to other elders and then took no further part in what happened because he went on holiday. Upon his return from holiday, he learned that Peter Stewart had been removed as a ministerial servant. He added that, afterwards, all parents of the congregation were given warnings about the inadvisability of allowing their children to be on their own with a man who was not a family member. He stated that he was asked to visit a mother in the congregation to give that advice. He could not recall who it was that he warned.

Alan Orton referred to the same issue, although he stated that the report to the elders had been from AM's grandmother, rather than from her father. He stated that she informed the body of elders that AM, who was about six years of age, had told her that Peter Stewart had performed acts of a sexual nature upon her. After investigation by two elders, in the course of which Peter Stewart had admitted the allegation, a judicial committee of three elders was formed, of which he was a member. In total, there were about 5 or 6 elders attached to the Limehurst congregation. The other two members of the judicial committee may have been Laurie Hunter and Robert Brown, both of whom have since died. At the hearing of the judicial committee, Peter Stewart admitted the abuse. He was asked if he had ever touched any other child and he said he had not done so. He said he was very sorry and it would not happen again. The judicial committee decided that, because he was remorseful and genuinely repentant, he should not be disfellowshipped. Instead, he was given scriptural reproof and counsel admonishing him that he should never be alone with children in any circumstances and was removed as a ministerial servant. The result, but not all the details, was reported back to the body of elders. AM's grandmother was informed of what had happened and was asked if she wanted to report the matter to the police. She said she did not want to report it.

In a second statement dated November 2014, Alan Orton stated that, after the judicial committee had made its decision, the body of elders met to discuss how they could continue to safeguard children in the congregation. They decided to make a public announcement at a meeting and also to speak privately to parents of the congregation.

In relation to the public announcement, his recollection is that the congregation were informed that Peter Stewart had been removed as a ministerial servant. He was unsure whether the announcement also indicated that he had been reproved, but it was likely that it did. It was also possible that a talk was given to the entire congregation warning them about the need for parents to supervise their children. If such a talk was given, it would not have named Peter Stewart, but would have outlined bible principles for parents to consider. In relation to speaking privately to parents, pairs of elders visited parents and warned them of the need to protect their children. Alan Orton said he went with another elder, who may have been Laurie Hunter, to visit the claimant's mother. He stated that he warned her about Peter Stewart, telling her that under no circumstances should she allow her children to be alone with Peter Stewart.

In evidence, Alan Orton confirmed the contents of his statements. In relation to the public meeting, he added that the congregation would have been told about Peter Stewart having been removed as a ministerial servant and then warned separately about the need to supervise their children. They would not have been told specifically that Peter Stewart had sexually assaulted a child, but it was intended that the conjunction of the two announcements should cause the congregation to understand that Peter Stewart was a sex abuser of young children. In relation to speaking privately to the claimant's mother, he said he could not remember the exact words he used, but it would have been to the effect that Peter Stewart was a very dangerous man and under no circumstances should she allow him to be alone with her children. He may well have told her why he was considered dangerous in that he had sexually interfered with a child, but the child would not have been named.

Anthony Hodgkinson stated he could not remember what happened in 1990, but referred to a Watchtower document dated 31 August 1990 which recorded that Peter Stewart had been judicially reproved and deleted as a ministerial servant.

In the claimant's mother's statement of February 2014, she recollected that there was a time around 1990 when, without understanding why, Peter Stewart was stopped from taking any study groups or field service. There had been rumours about him concerning sexual abuse of AM. However, she stated that no one was informed about what he had done and, after about three or four weeks, he returned and carried on as if nothing had ever happened. As a result, despite the rumours, everyone assumed nothing had happened. In her statement of November 2014 and in her evidence, the claimant's mother denied that Alan Orton or any other elder had spoken to her at any time to warn her to keep her daughters away from Peter Stewart because he was a danger to them or that he had admitted sexually assaulting a young girl in the congregation.

Having considered all of the evidence about what happened in 1990, I am mindful and take into account that I have not received any evidence from the elder who Alan Orton says went with him, who may have been Laurie Hunter, who has since died.In relation to the events of 1990, I prefer the evidence of the claimant's mother to that of Alan Orton.Having heard the claimant's mother give evidence, I am satisfied that, if she had been given the warnings as alleged, she would not thereafter have allowed Peter Stewart any access to her children, even the more limited access about which there is no dispute.She would not have written the reference in 1995.She would not have argued with the claimant's father in the manner I am about to describe in about

Having heard Alan Orton give evidence, I am satisfied that he presented himself as being completely honest. However, partly because he is now 77 years of age, partly because his memory is poor and partly because the events were a long time ago, he had difficulty in understanding some of the questions, periodically became confused and gave incorrect answers that he later changed when he realised what he had said was wrong. In relation to the Section 14 issue, I find his description of the steps taken in relation to warning the congregation publicly and privately to be illogical. The scriptures forbid revealing confidential matters. The inference therefore is that no member of the congregation, publicly or privately, should have been told of what Peter Stewart had done. If a public talk took place, such as that regarded as possible by him, arguably that alone would have breached confidentiality. Mentioning the specifics to the claimant's mother would certainly have done so. Notwithstanding his obvious honesty and the partial support for his evidence from Robert Berry, I am unable to accept the reliability of his account of what happened in 1990.

It is with these background facts in mind and the conclusion I have reached about what was, or rather was not, said to congregants and the claimant's mother in 1990 that I turn to consider the important issue of the claimant's knowledge.I have had to come to a conclusion in relation to that specific part of the evidence in order to consider the s.14 issue.

The claimant's evidence is that she knew nothing at all about any allegation of Peter Stewart having sexually abused a young girl before 2002.In about 2002, she overheard her parents talking about the fact that the elders had known that Peter Stewart had been accused of sexually abusing AM.Her mother believes that date may have been about three years later. Whichever date it was, according to the claimant, her father was saying that he believed the elders had known about the abuse whereas consistent with the finding I have just made, her mother was saying that she did not believe it could be true and the elders could not have known.The claimant said that she did not want to hear any more about it and her parents eventually stopped talking in front of her about it.The claimant said that the next time she saw Alan Orton at her mother's house, which would have been soon afterwards,she asked him whether it was true that the elders had known that Peter Stewart had been accused of sexually abusing AM.Alan Orton said it was not true and added that, if the elders had known of something like that, Peter Stewart would have been dealt with. When he gave evidence, Alan Orton said that he had no memory of the question or the answer.

In August 2006, at a time when the claimant was still angry about what had happened to her, she met the circuit overseer, Paul Presland, at her mother's house. There is a Jehovah's Witnesses data record of the meeting having taken place, but there is no record of what was said at the meeting. The claimant states that she told Paul Presland that she had heard that the elders had known Peter Stewart had been accused of sexually abusing AM and, if they had done something about it at the time, then Peter Stewart would not have been able to have gone on to abuse her. In her statement, she stated that Paul Presland replied "the elders would never do that". In her evidence, she clarified what she meant. She explained he was saying that the elders would never have overlooked something like that if they had known about it. She understood him to be saying that, if they had known about it, Peter Stewart would have been disfellowshipped. She said that, after the meeting, she remained angry and had her own beliefs about what had happened but had nothing to back them up. After the discussions with Alan Orton and Paul Presland, she felt there was no way of ever finding out the truth of what had happened.

The claimant agreed in evidence that she continued to express her anger and belief that the elders had known that Peter Stewart had been accused of sexually abusing another child at a recorded meeting on 21 November 2013 with two elders, John Peel and Tony Penton. No admissions were made by the elders at that meeting to confirm her personal beliefs.

Mr Weitzman, for the defendants, submits that, for the purposes of s.14 of the Act, what a claimant must know is that an injury is attributable in whole or part to a defendant's act or omission and that attributable means that the injury is capable of being attributed to the act or omission, not that causation, a cause of action or all allegations that might be pleaded are available. He submits that the evidence of Alan Orton can be accepted and, from the rest of the claimant's evidence, she had sufficient knowledge for the purposes of s.14.

Mr Counsell, for the claimant, submits that the evidence of the claimant is to be preferred to that of Alan Orton. She had nothing to go on except for what she describes as her "belief", which in reality was unsubstantiated and amounted to no more than suspicion. Even then, such "belief" amounted to no more than that the elders had known of an allegation of sexual abuse, not that Peter Stewart had committed any sexual offence. Therefore, prior to the service of the witness statements, she lacked sufficient information to investigate a claim, let alone bring proceedings.

S.14(1) of the Limitation Act 1980 provides:

“...in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following factsand knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) ...

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

The claimant knew that she had been sexually abused and knew that she had suffered significant injury arising from the abuse. The issue is whether, in accordance with s.14(1)(b), she had knowledge that the injury was attributable in whole or part to the act or omissions, which are alleged to constitute the negligence of the defendants.

In AB and others v Ministry of Defence [2013] 1 AC 78, Lord Mance referred at paragraph 80 to the much-quoted sentence of Hoffman LJ in Broadley v Guy Clapham & Co [1994] 4 All ER 439, 448H-J

"S.14(1) requires that one should look at the way in which the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based."

Lord Mance continued at paragraph 81 by referring to the approval of the House of Lords of the above passage in Haward v Fawcetts [2006] 1 WLR 682 citing extracts from the judgments of Lord Walker, Lord Scott and Lord Brown. Lord Walker referred to the court being concerned with the identification of the facts that are the "essence" or "essential thrust" of the case. Lord Scott referred the requisite knowledge being "knowledge of the facts constituting the essence of the complaint of negligence". Lord Brown referred to the claimant needing to know "the essence of the act or omission to which his damage is attributable".

The essence or essential thrust of the claimant's pleaded case in relation to the "safeguarding claim" is that defendants failed to protect children of members of the congregation from sexual assault by Peter Stewart after they became aware of his sexual offending in 1990. The crucial issue therefore is whether the claimant had sufficient knowledge of the fact that the defendants had become aware of Peter Stewart's sexual offending in 1990.

In the leading judgment in AB and others, Lord Wilson stated the test was as follows:

"11. ...Had I been offering a view of the meaning of knowledge in s.14(1) in circumstances in which I had been unassisted by authority, I think I might have ventured the phrase "reasoned belief" rather than "reasonable belief". The word "reasoned" might even better have conveyed the need for the belief not only to be held with a degree of confidence (rather than to be little more than a suspicion) but also to carry a degree of substance (rather than to be the product of caprice). But the distinction between the phrases is a matter of little more than nuance. In the resolution of marginal issues, and even at the level of this court, there is a lot to be said for maintaining consistency in the law. So I consider that this court should reiterate endorsement for Lord Donaldson MR's proposition that a claimant is likely to have acquired knowledge of the facts specified in s.14 when he first came reasonably to believe them. I certainly accept that the basis of his belief plays a part in the enquiry; and so, to that limited extent, I respectfully agree with paragraph 170 of Baroness Hale JSC's judgment.

What I do not accept is that he lacks knowledge until he has the evidence with which to substantiate his belief in court. Indeed, we should not forget that, if the action is to continue, the court will not be directly interested in evidence about mere attributability; it will require proof of actual causation in the legally requisite case.

What then is the degree of confidence with which a belief should be so held, and of the substance of which it should carry, before it is to amount to knowledge for the purpose of the subsection? It was again Lord Donaldson MR in Halford v Brookes [1991] 1 WLR 428 who, in the passage quoted by Lord Phillips PSC in paragraph 115 below, offered guidance in this respect which Lord Nicholls in Haward v Fawcetts [2006] 1 WLR 682 was, at paragraph 9, to describe as valuable and upon which, at this level of generality, no judge has in my view yet managed to improve; it is that the belief must be held "with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence."

For the reasons already stated in relation to the facts, the claimant had no information at all about what the elders might have known in 1990 until overhearing her parents speak about it some time between about 2002 and 2005. All that she then discovered was that there was an allegation that the elders had known about an allegation of Peter Stewart having sexually abused AM. Her efforts to discover what the elders actually knew were thwarted by what I am satisfied was the negative reaction of both Alan Orton and Paul Presland. Her anger and comments at the meeting on 21 November 2013 produced no confirmation upon which to act. In my judgment, her "belief" was not held with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence. The "belief" she had was in reality no more than mere suspicion. In such circumstances, she did not thereby have sufficient knowledge within the meaning of s.14(1) until the statements were served in March 2014.

Limitation - s.33 "disapplication"

S.33 of the Limitation At 1980 provides:

“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-

(a) the provisions of section 11... of this Act prejudice the plaintiff...; and (b) any decision of the court under this subsection would prejudice the defendant ...

the court may direct that those provisions shall not apply to the action or shall not apply to any specified cause of action to which the action relates.

(2) ...

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to-

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence to be adduced or likely to be adduced by the plaintiff 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...

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he 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."

(d)...

(e)...

(f)...

S.33(1) gives the court discretion to allow an action to proceed outside the limitation period and requires the court to balance the prejudice to the claimant arising from the limitation period against the prejudice to the defendant in permitting an action to proceed outside that period. That requires a balancing exercise to be performed taking all the circumstances into account. S.33(3) does not place a fetter on the discretion given by s.33(1). This much is made plain by the opening words "the court shall have regard to all the circumstances of the case". S.33(3) focuses the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and which must be taken into consideration by the judge (Donovan v Gwentoys Ltd [1990]1 WLR 472 at 477H-478A).

In considering the delay to which particular regard should be given under s.33(3)(a) and (b), I bear in mind that, pursuant to McDonnell v Walker [2009] EWCA Civ 1257, it is the delay since the expiry of the limitation period that is relevant, although the overall delay is relevant as part of all the circumstances of the case.

Under s.33(3)(a), particular regard is to be had to "the length of, and reasons for, the delay". The two matters appear in the same sub-paragraph. There is relevance to the conjunction of the two issues.

The limitation period expired in September 2006, three years after the claimant's 1 8th birthday. The proceedings were commenced in March 2013, 6 1⁄2 years later. It is noteworthy, though, that the facts relevant to the action date back to the period between 1989 and 1994. Even if the proceedings had been legitimately commenced within the limitation period in 2006 and heard, say, in 2008, this would still have been a historic sex abuse case with all the issues associated with trials of that nature.

That said, it is not a case where everything is in issue. By reason of the judicial committee proceedings in 1990 and Peter Stewart's conviction in 1994, it is not disputed that the claimant was sexually abused by him and over a lengthy period. The issues in relation to the abuse are those identified above in paragraph 24.

In relation to the reasons for the delay, the case of A v Hoare [2008] 1 AC 844 at 863C-D requires a judge to give due weight to evidence that the claimant might have been disabled from commencing proceedings by any psychiatric injury that might have been suffered. Mr Weitzman concedes that the expert report of Dr Roychowdhury establishes that the Post Traumatic Stress Disorder suffered by the claimant justifiably explains why she was unable to focus upon the prospect of commencing proceedings until 2013.

Further, there is no issue as to s.33(3)(c). It is not suggested that the defendant's conduct has affected the claimant's ability to bring the action. S.33(3)(d)-(f) are also irrelevant in the context of the action.

The narrow focus, therefore, pursuant to s.33(3)(b) is on the extent to which the delay has affected the cogency of the evidence under the wider umbrella of the surrounding circumstances of the case.

Mr Weitzman refers to the death of witnesses and the difficulty about documentation and recollection so long after the events. He relies on the judgment in McDonnell, which contrasts the type of case where a defendant cannot show any forensic prejudice and for whom the limitation defence would be a complete windfall with one where prejudice is suffered because a defendant has not for many years been notified of a claim so as to enable investigation of it. He submits this is not a windfall case, but one where real prejudice has been suffered. He also refers to the observations of Lord Brown at paragraphs 85 and 86 of Hoare wherein he dealt with the real difficulties that could arise in having a fair trial in relation to historic sex abuse cases. In summary, he submits the defence evidence is substantially less cogent than it might have been and the prejudice is such that I should refuse to disallow the operation of s.11 of the Act.

Mr Counsell submits the cogency of the evidence has not been significantly adversely affected. Memories may have faded over the short time frame of delay since the expiry of the limitation period, but not substantially. Indeed, the defence have been able to call all of the witnesses they would have called if the action had been brought in time. No key witnesses have died during the 6 1⁄2 years period. The two elders referred to in evidence who have died, Mr Hunter and Mr Brown, respectively died in 1999 and 1992. The defence have not identified any documents that have not been recovered as a result of delay outside the limitation period. Many records have been recovered. Any documents that may have assisted were destroyed many years ago. They include the police interview, although there is a detailed summary of it, as well as the report from the judicial committee in 1990, which Paul Gillies said would have been destroyed almost immediately after the hearing. He submits this is an appropriate application to be granted.

In relation to the circumstances of the case, I have regard to the balancing exercise I must perform between the prejudice on both sides. So far as the claimant is concerned, I take into account the fact that this is not a case where the claimant would have redress against any other prospective defendant.

A refusal to disapply the limitation period will mean the end of the action for her. This is not a windfall case for the defendants. However, I do not regard any additional prejudice to the defendants arising either since the expiry of the limitation period or as a whole have so adversely prejudiced them that it should outweigh the prejudice to the claimant. In such circumstances, I am satisfied that a fair trial remains possible. At all times, I bear in mind the difficulties associated with the lack of evidence, particularly lack of documentation and witnesses, as well as poor recollection. In my judgment, the claimant has satisfied me that it is equitable to allow the action in relation to the "assault claim" to proceed and for me to direct that the provisions of s.11 should not apply to that part of the case. I am further satisfied that, even if (contrary to my earlier finding) the claimant were to be deemed to have had sufficient knowledge within the meaning of s.14 of the Act, it would be equitable to allow the action in relation to the "safeguarding claim" to proceed and for me to direct that the provisions of s.11 should also not apply to that part of the case.

Vicarious liability - "the assault claim"

As Lord Phillips put it in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56;[2013] 2 AC1, "the law of vicarious liability is on the move". It is no longer limited to employees of a defendant acting in the course of their employment. It has been extended to those who are not employees of the defendant but with whom the defendant has a relationship "akin to employment". In that case, a residential school's headmaster and teachers who were members and brothers of a lay Roman Catholic Order, but who were not employed by the order, sexually abused children at the school. The order was held to be vicariously liable for the abuse because it exercised a degree of control over the members by reason of the vows the members took and the hierarchical structure of the order. Lord Phillips at paragraph 21 referred to a two stage test for establishing vicarious liability.

"21... The test requires a synthesis of two stages: (i) The first stage is to consider the relationship of D1 and D2 to see whether it is one that is capable of giving rise to vicarious liability. (ii)...What is critical at the second stage is the connection that links the relationship between D1 and D2 and the act or omission of D1."

In relation to the first stage, in E v English Province of Our Lady of Charity and another [2013] QB 722 a priest appointed by a diocesan bishop to visit a children's home sexually abused a child at the home. At paragraph 73 of the judgment, Ward LJ stated that the time had come emphatically to announce that the law of vicarious liability had moved beyond the confines of a contract of service and described the test to be applied as follows:

"...whether the relationship of the bishop and (the priest) is so close in character to one of employer/employee that it is just and fair to hold the employer vicariously liable."

Ward LJ then examined whether the relationship was so close in character by considering the four signposts of a "control" test, an "organisation" test, an "integration" test and an "entrepreneur" test. Having done so, he held it was just and fair to hold the bishop accountable, in that the priest owed him reverence and obedience and could be dismissed by him in the event of a gross breach of his duties. His activities in ministering to the souls of the faithful were central to the objectives of the organisation, the Roman Catholic Church. He was part and parcel of that organisation and was integrated in it. In his work, he behaved more as if he was an employee than someone in business on his own account.

Mr Weitzman submits that elders and ministerial servants are different to the priest in the case of E and the brothers in the case of Various Claimants. The priest and brothers were full time clergy. Elders and ministerial servants are not full time clergy They have no stipend. There is no stipulation as to where they should live. They have a secular life as well as being members of the congregation. They share common beliefs with other members of the congregation, but the way they act is no different to other members of the congregation. They are not controlled by, fully integrated into or obedient to the organisation of Jehovah's Witnesses in the same way that a full-time clergyman is. Mr Weitzman's submissions need to be tested alongside the approaches adopted in the cases of E and Various Claimants.

In relation to control, it is apparent from the structure and governance of Jehovah's Witnesses as summarised above and from the evidence from numerous elders, particularly the lengthy evidence of Alan Orton, that being a Jehovah's Witness is a way of life for all members. It is not confined to the attendance at services. It affects every aspect of one's daily life. That is particularly so for those who become elders and ministerial servants. The strict code of moral conduct by which all members are expected to observe and apply to their day-to-day living is enforced by the existence of the judicial committee and its jurisdiction over all aspects of the life of a Jehovah's Witness.

In the case of Peter Stewart, he was brought before the judicial committee in relation to an extremely serious allegation about his sexual offending. However, in other cases, the transgression could be far less serious, in the sense of it being a spiritual sin rather than a criminal offence. The sanctions available to the Judicial Committee are wide ranging and include reproof, removal or deletion as an elder or ministerial servant and disfellowship. Specifically, in relation to ministerial servants, Mr Gillies gave evidence that if a ministerial servant fails to measure up to bible qualifications, the elders may express concern about him to the circuit overseer. If he fails to change and continues not to measure up to the scriptures, the circuit overseer can recommend deletion as a ministerial servant. If the matter is dealt with by a judicial committee, there is no appeal from such a decision.

The high level of control over all aspects of the life of a Jehovah's Witness is arguably a closer relationship than that to be found in an employer/employee relationship. It is at least akin to such a relationship. It is to be contrasted with rather less control that the bishop had over the priest in the case of E. There, the priest was appointed to his office subject to the oversight of his bishop and in a wide sense the priest was found to be accountable to his bishop, but responsibility for running the parish rested with the parish priest. He exercised his ministry in co-operation and collaboration with his bishop rather than one who was subject to the bishop's control.

In relation to organisation, the hierarchical organisational structure of Jehovah's Witnesses that has already been referred to has close similarities to the organisational structure of the Roman Catholic Church which was described by Ward LJ in E. The Roman Catholic Church was described as being highly organised with the Pope in the Head Office, with its "regional offices" with their appointed bishops and with "local branches" being the parishes with their appointed priests. Jehovah's Witnesses, too, are highly organised with a governing body, branch offices, districts with a district overseer, circuits with a circuit overseer and congregations with members made up of publishers, ministerial servants and elders. There is no hierarchical structure of setting apart the clergy. However, there is prescriptive guidance as to how a ministerial servant and an elder should serve, act and behave at all times. Members can work their way up from being a publisher to being a ministerial servant to being an elder. Down at local level within the congregations, there are organised meetings, study groups and field service principally supervised or led by Jehovah's Witnesses of differing seniority.

The Watch Tower Bible and Tract Society of Britain is a charity dealing with large sums of money. It is notable that, at local level, part of the responsibility of a ministerial servant is to take charge of congregational accounts that feed into the charity's resources. The Watch Tower's Memorandum of Association declares its objects are to advance the Christian religion as practised by Jehovah's Witnesses by preaching the gospel of God's Kingdom under Christ Jesus unto all nations as a witness to the name, word and supremacy of Almighty God, Jehovah; by producing and distributing bibles and other religious literature in any medium and educating the public in respect thereof; promoting religious worship, Christian missionary work; advancing religious education; and maintaining one or more religious orders or communities of special ministers of Jehovah's Witnesses. In order to do that, Jehovah's Witnesses function via its organisational structure.

By a simple substitution of words, the organisation of Jehovah's Witnesses is analogous to the way Ward LJ described the Roman Catholic Church at paragraph 77 of his judgment, namely:

"This looks like a business and operates like a business. Its objective is to spread the word of God. The priest has a central role in meeting that target. Ministering, as he does, to the souls of the faithful, can be seen to be the very life blood of the church, vital to its existence."

In relation to integration, a useful test, in accordance with Denning LJ's observations in Stevenson Jordan & Harrison Limited v McDonald & Evans [1952] 1 TLR 101, is whether the relevant person is "part and parcel of the organisation, not only accessory to it". A ministerial servant may not be very far up the ladder of the structure but his role is one of great importance. The routine tasks performed by him are necessary and important tasks without which many of the activities of Jehovah's Witnesses cannot be carried out. He deputises for an elder in the absence of an elder. I am satisfied that, in deputising, he assists the elders, not only with routine administrative tasks but also standing in on occasions with a teaching role, if necessary. One also cannot become an elder without first having been a ministerial servant. As such, a ministerial servant is part and parcel of the organisation and integral to it.

In relation to the entrepreneur test, the issue is whether the relevant person is more like an independent contractor than an employee. In other words, is he actually behaving like an entrepreneur, running his own business, taking the appropriate risks and enjoying the resulting profits? In the case of the priest in E,the priest was found not to be receiving a wage, but was required to reside in the parochial house close to his church. He therefore did not quite match a very facet of being an employee,but was regarded as being very close to it.The description of his activities certainly did not resonate with being an entrepreneur.Like the priest,a ministerial servant does not receive a wage.Unlike the priest, there was no requirement as to where he should live. However,it would be inaccurate to describe him as being more like an independent contractor than an employee.He is a fundamental part of the whole enterprise dedicating himself to the good of Jehovah's Witnesses.His duties are solely to serve the interests of the organisation. He is constantly working for the good of the organisation of Jehovah's Witnesses and not for himself.

Notwithstanding the matters raised by Mr Weitzman,by reason of the answers to the signposted tests applied by Ward LJ to the first stage, in my judgment the relationship between elders and ministerial servants and the Jehovah's Witnesses is sufficiently close in character to one of employer/employee that it is just and fair to impose vicarious liability.

In Various Claimants, Lord Phillips noted and did not disapprove of the application of the four signposts referred to by Ward LJ. However, he preferred a simpler analysis in concluding that the stage one test was satisfied. At paragraph 61, he held that:

"...Providing that a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage one, just as in the case of the action of a member of a partnership. Had one of the brothers injured a pedestrian when negligently driving a vehicle owned by the institute in order to collect groceries for the community, few would question that the institute was vicariously liable for his tort."

Ward LJ also used a road traffic example to test the conclusion he had arrived at by adopting the signposted tests. His example demonstrated vicarious liability being the appropriate outcome in circumstances where a priest may knock down a pedestrian at a zebra crossing when driving to give the last rites to a member of the parish. Mr Weitzman used that example in his final submissions to suggest that, if a Jehovah's Witness was driving to a location to carry out field service and knocked down a pedestrian, it would be nonsensical for vicarious liability to apply in those circumstances. Mr Counsell replied by stating that the better analogy is whether vicarious liability would be appropriate in circumstances where a ministerial servant was taking a publisher to field service and had an accident in the course of which the publisher was injured. In his submission, it would. I agree.

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