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82.  The elimination of these anomalies from the law together with the various artificial types of claim which they have spawned provides an ample reason for invoking the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 so that justice may henceforth be done in these cases as Parliament intended.

83.  There is nothing which I wish to add to Lord Hoffmann’s discussion and conclusions about the meaning of “significant” injury in section 14(2) of the 1980 Act (at paras 31-48 of his opinion).

84.  With regard to the exercise of the court’s discretion under section 33 of the 1980 Act, however, I would make just three brief comments—not, let it be clear, in any way to fetter a discretion which the House in Horton v Sadler [2007] 1 AC 307 recently confirmed to be unfettered, but rather to suggest the sort of considerations which ought clearly to be in mind in sexual abuse cases in the new era which your Lordships are now ushering in, firstly, by departing from Stubbings v Webb and, secondly, by construing section 14(2) so as to transfer from that provision to section 33 consideration of the inhibiting effect of sexual abuse upon certain victims’ preparedness to bring proceedings in respect of it.

85.  First, insofar as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at para 52, that is likely to bear significantly upon the possibility of having a fair trial.

86.  Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations—see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.

87.  Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffmann at paragraph 36). It is not to be supposed that the exercise of the court’s section 33 discretion will invariably replicate that position.

88.  My third and final comment relates most directly to A’s appeal and it is this. The definition of “significant injury” in section 14(2) refers to the justifiability of bringing proceedings against a defendant “able to satisfy a judgment". That surely is unsurprising. It would not ordinarily be sensible to sue an indigent defendant. How then should the court approach the exercise of its section 33 discretion in a case like A where suddenly, after many years, the prospective defendant becomes rich. The House is not, of course, itself exercising this discretion. I would, however, suggest that it would be most unfortunate if people felt obliged (often at public expense) to bring proceedings for sexual abuse against indigent defendants simply with a view to their possible future enforcement. (Judgments, although interest-bearing for only six years, are enforceable without limit of time.)

89.  For the purposes of these appeals, my comments are, of course, essentially by the way. Your Lordships were, however, invited by the Bar (indeed, those representing the interests of both claimants and defendants) to give such broad assistance as we felt able to regarding the exercise of discretion under section 33.