29 November, 2022
This article is the second in our IICSA blog series and will explore recommendation 15, which suggests the UK government make necessary changes to legislation regarding the current three-year limitation period.
The Inquiry recommends that the current three-year limitation period for personal injury claims brought by victims and survivors of child sexual abuse is removed, either with or without preserving any other procedural form of defence to claims, meaning legislative reform. In addition, the Inquiry recommends a shift in the burden of proof from Claimant to Defendant, with the burden falling on the Defendant to demonstrate that a fair trial is not possible.
The Inquiry suggests that the recommendation should apply to all personal injury claims brought by victims and survivors of child sexual abuse regardless of whether the current three-year limitation period has already started to run or has expired, except where claims have already been dismissed by a Court or otherwise settled by agreement. The change in limitation should only apply to claims brought by victims and survivors and not claims brought on behalf of victims and survivors' estates.
The current (extendable) three-year limitation period applies to all claims for personal injury, yet very few victims and survivors of child sexual abuse bring their claims before the expiration of the limitation period due to the sensitive nature of the abuse they have been subjected to. Victims and survivors of child sexual abuse can be reluctant to come forward and many choose not to make disclosures until some years later.
When a claim is presented out of time, it is currently open to a Defendant to raise the defence of limitation. When limitation is raised, victims and survivors must ask the Court to exercise its discretion in allowing the claim to proceed based upon that individual's circumstances and dependent on various factors such as: the length of and reasons for the delay in bringing the claim, the cogency of evidence, the conduct of the Defendant after the claim was brought, the extent to which the Claimant acted promptly and reasonably once they knew there was a possibility of bringing a claim and also any steps taken by the Claimant to obtain medical, legal or other expert advice.
The Inquiry suggests that the limitation defence currently operates unfairly in the context of child sexual abuse claims at three key stages of the litigation process, namely;
The Inquiry is mindful that some Defendants believe that changes should be made to legal procedures, such as through the design of a Pre-Action Protocol tailored to the management of abuse claims, rather than by alteration to existing Statute, however, the Inquiry maintains that legislative reform is needed as the current framework is insufficient.
Generally, in our experience, Insurers and Local Authorities have taken a sympathetic and pragmatic view with regards to limitation. It is rarely raised as a defence unfairly. Indeed, when asked by the Inquiry, Claimant lawyers were unable to provide any empirical evidence of how many cases had not been taken on or had been dropped purely due to limitation, leaving the Inquiry to make an educated guess from anecdotal reports. As such, if legislative change does take place, we question how much of an impact this would actually have on abuse handling and litigation.
The Inquiry is also yet to clarify the term 'abuse.' Will the proposed change be restricted purely to sexual abuse claims, or will emotional and physical neglect be included? Online grooming and abuse is also a concern; will claims of this nature be included or will they have to include a sexual element? From when will time begin to run? Often, victims of abuse will first encounter problems in childhood which re-present themselves in adulthood. Any revised legislation will have to provide clear definitions to prevent foreseeable satellite litigation arising.
Whilst claims that have already been settled or dismissed by the Court may not be revisited under this suggested change, many others, where limitation may have been a factor in the decision not to proceed, may have floundered. Should the proposed change be adopted, we may see a flurry of 'historic' allegations being re-presented. This will present a challenge to both sides. Many social workers will have retired, others will simply be unable to recall key information about a period of time in history, which is essential when the Bolam test is in play. The move from handwritten hard copy records to computerised systems brings additional complexity assuming the availability of historic records in the first place. Where contemporaneous documents have been legitimately destroyed, the pursuit of truth becomes very difficult. Memories naturally fade and truth can easily become distorted, which was why the Limitation Act was enacted in the first place, to ensure there could be a fair trial.
Whether or not this change will be implemented by the Government remains to be seen. Given recent political upheaval, we doubt that the Truss government's commitment to respond to the Inquiry's recommendation within 6 months, will now happen.
However, similar changes to limitation requirements have been implemented by the Scottish Government, as well as ones being applied after inquiries in Canada and Australia so there are several precedents for similar change.
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