16 January, 2020
The Independent Inquiry into Child Sexual Abuse (IICSA) reported recently that many abuse survivors find the civil litigation process "baffling and hostile". Claimant lawyers reported that in "many if not all" cases Defendants routinely rely on the Limitation Defence. This was said to be "appallingly difficult" for clients to understand.
Limitation applies to all sorts of legal claims albeit with slightly different time limits applied. In the case of a personal injury damages claim, which does of course encompass sexual abuse claims, the Limitation Act of 1980 obliges Claimants to issue proceedings within 3 years of the date of knowledge of abuse (or in the case of a minor before they pass their 21st birthday).
Section 33 of the Limitation Act however allows claims "out of time" to proceed at the discretion of the Court if certain conditions are met.
Although there are a number of criteria to be considered, the nub of whether or not the Court is likely to exercise its discretion to allow the claim to proceed really boils down to the question of whether or not the Judge considers that a fair trial would still be possible in spite of the length of time since the alleged abuse.
In my experience (both as a Claimant and Defendant Solicitor) the Court exercises its discretion reasonably and liberally, particularly in sexual abuse cases where it is acknowledged that it is often the very trauma resulting from the abuse that might prevent a Claimant having the psychological capacity to mount a compensation claim within time.
I believe most Defendant insurers and their solicitors accept this reality. Although it would be potentially negligent of a Defendant Solicitor not to raise in the Defence the fact that the claim is "out of time", only a small percentage of such cases would be run to trial with limitation as a live issue. A situation where that might be the case is when the allegations relate back many decades. I have recently dealt with claims which date back to the 1960s, where documentary evidence is totally absent and potential witnesses or perpetrators are dead or untraceable. I submit that it is in those circumstances where a Defendant can reasonably argue that a fair trial is not possible.
Nevertheless, there is considerable pressure from Claimant victim groups to change the law so that no time bar would apply in sexual abuse cases. I am aware that IICSA has sought representations from all interested parties on this issue and will no doubt make certain recommendations for the future.
My considered view is that it would not be fair or in the interests of justice to completely abolish limitation in sexual abuse cases. It might be possible to extend the present 3-year period in effect legislating for a more liberal acceptance that a victim's "date of knowledge" might well be some years after the abuse has occurred. I maintain however that Defendants should be able to raise a Defence that a fair trial is not possible in those cases where the evidence is practically non-existent due to the absence of documents and/or witnesses or some other clear proof of the fact of the abusive acts (such as a criminal conviction). Fraudulent claims in this area of law are rare but not unknown. Disregarding any time limit for pursuing a damages claim might well encourage false claims if it meant simply alleging historical abuse many years previously. Any changes to the Limitation Act must ensure a fair trial is still possible. As I have indicated, under the present system, if cogent evidence is available the Court is likely to let the matter proceed well beyond the 3-year period.