Last Thursday the Independent Inquiry into Child Sexual Abuse (IICSA) published its final report with findings and recommendations on a number of aspects of child sexual abuse including measures to prevent and protect and the available routes for redress including by civil litigation. Each of these recommendations is worthy of its own blog post and this blog focuses on the recommendation to abolish primary limitation in civil historic child sexual abuse claims.

If the recommendation is implemented it will mark a new era for this group of claims by shifting the limitation burden onto the defendant, altering the level of risk attributable to limitation in settlement negotiations and the way in which these claims are litigated as a whole.

Recommendation 15

IICSA’s recommendation on limitation is as follows.

The Inquiry recommends that the UK government makes the necessary changes to legislation in order to ensure:

  • the removal of the three-year limitation period for personal injury claims brought by victims and survivors of child sexual abuse in respect of their abuse; and
  • the express protection of the right to a fair trial, with the burden falling on defendants to show that a fair trial is not possible.

These provisions should apply whether or not the current three-year period has already started to run or has expired, except where claims have been:

  • dismissed by a court; or
  • settled by agreement.

They should, however, only apply to claims brought by victims and survivors, not claims brought on behalf of victims and survivors’ estates.

 

Current limitation law

Civil claims arising from sexual abuse are ultimately claims for personal injury and almost always claims for psychological injury such as depression, anxiety and/or PTSD. This means that they fall within section 11 of the Limitation Act 1980 such that a claim must be brought within three years of the event or date of knowledge (within the meaning of section 14), whichever is later. For claimants who were children at the time of the abuse, as envisaged by the IICSA report and as is sadly often the case in historic abuse claims, primary limitation ends on their 21st birthday or date of knowledge if later. As noted by IICSA an “overwhelming majority” of child sexual abuse claims are brought out of time for reasons which are explored below.

Limitation operates as a complete procedural defence to a claim such that if a defendant raises limitation in their Defence, a claimant must persuade the court to exercise its discretion under section 33 to allow the claim to proceed. Section 33 sets out a variety of factors that are to be taken into account. No one factor is determinative but all of them are ultimately concerned with whether it would be equitable to allow the claim to proceed given the competing interests of the parties.

The exercise of section 33 discretion is a highly fact specific exercise as demonstrated by the number of decisions pointing in both directions including in recent years in claims arising from historic sexual abuse. This means that limitation poses a real risk to both sides but since the burden is on a claimant, it is particularly powerful tool at a defendant’s disposal during settlement negotiations.

The stress and uncertainty of limitation issues can, in some instances, result in claimants withdrawing their claims altogether or accepting offers well below the reasonable settlement value advised by legal representatives. This is a particularly troubling consequence given that these claimants often have ongoing psychological injuries and can find that the process of civil litigation, revisiting the abuse, revisiting their sequence of disclosure and coming to terms with it within the context of litigation, exacerbates their symptoms.

 

Common reasons for delay in child sexual abuse claims

It is unsurprising that a significant number of survivors of child sexual abuse do not bring claims before their 21st birthdays. The root of this is that they often do not feel able to disclose the abuse at all until much later in life. There is a wealth of research and precedent that validates common reasons for non-disclosure. These reasons include feeling too ashamed to disclose, feeling guilty or embarrassed, thinking or worrying that nobody will believe them, being threatened or groomed into silence before/during/after the abuse, repressing memories of the abuse as a coping mechanism and the perceived power of the institutions they were up against. It should also not be forgotten that our modern awareness of the scale and complexity of sexual abuse and its impact on individual lives and mental health was not the status quo the late 20th century, which itself caused many survivors to repress their memories and experience heightened feelings of shame or not being believed.

For these and various other fact-specific reasons, it is common for claimants to only disclose and therefore consider claiming well after the expiry of primary limitation. Common triggers for disclosure include having children of a similar age, reading about child sexual abuse in the media e.g. Jimmy Saville and/or being in the “safe space” of therapy with a trusted therapist for mental health issues not yet attributed to the abuse.

Reasons and triggers such as these are not common across the whole of personal injury litigation, they generally only arise in the context of sexual, physical and/or emotional abuse. It is this relatively unique feature of abuse claims that sets the scene for IICSA’s recommendation to have a separate limitation regime that does not apply to other areas of personal injury law.

 

IICSA’s findings on limitation

The issue considered by IICSA was whether the limitation regime should continue to apply as it does to survivors of child sexual abuse.

The report rightly acknowledged the purpose of limitation law in general which is to protect defendants’ ability to fairly defend claims brought against them, which is sometimes impossible if claims are brought too long after the event. When defendant representatives were asked for their views on reforming the system, the preservation of the right to a fair trial was their biggest concern.

IICSA’s report found however that on balance “the defence of limitation continues to operate unfairly as a barrier to claimants” in historic child sexual abuse claims and does so at three main stages of litigation [85]:

  1. When seeking to secure legal representation, limitation risk preventing many claimant firms from being able to accept claims on a CFA basis.
  2. During settlement negotiations, limitation risk being a significant discounting factor in the settlement valuation of claims.
  3. At trial, requiring a preliminary issue trial on limitation which is often unpredictable and traumatic for a claimant who, if they succeed, will then be expected to give further evidence at the substantive trial.

The key explanatory paragraphs of the IICSA report are [90] to [92] and conclude that:

  • “the current regime was not designed with the needs of victims and survivors or child sexual abuse in mind” who face various barriers to disclosure that do not apply to personal injury litigation more generally.
  • The average time between the event and disclosure was 26 years, meaning that the starting point in the majority of claims is that the claim is time-barred.
  • “having to justify any delay in bringing their claims adds a further and unnecessary burden to what is already a difficult process”.
  • These claimants have different needs to other personal injury claimants and the “nature of child sexual abuse can make it difficult for victims and survivors to discuss their experiences”.
  • The risk of negative consequences such as increased insurer costs, ease of obtaining institutional insurance, financial burdens on local authorities and the risk of satellite litigation, “may be overstated”.
  • “the benefits of changing the law far outweigh any potential negative consequences”.
  • “reforming the law recognises that sexual abuse itself is the reason for the delay and removes an unfair barrier to obtaining redress through the civil justice process”.

Having considered alternative reforms of abolition versus extending time limits, the report concluded that limitation periods should be abolished altogether in these claims, shifting the burden from the claimant to the defendant and recommending that it should be “for the defendants to demonstrate that a fair trial is not possible” [95].

IICSA recommended that the abolition should apply to all living claimants including those with ongoing claims who are presently outside of primary limitation. It (quite appropriately) did not go as far as to suggest that it should apply retrospectively to those whose claims have already settled or succeeded at trial.

 

Thoughts and comments

This author very much supports IICSA’s recommendation in principle, subject to some clarifications which are discussed below. One hopes that it will mean limitation is only raised in select cases rather than virtually every case, the latter being the reality at the moment. There will still be cases where there is appropriate argument over whether a fair trial is possible because of the lapse of time and it is right that there is a “fair trial” or similar test to allow proper scrutiny and consideration of these cases. But implementing this proposed change should significantly and justly remove the preliminary, risky and distracting hurdle of limitation for a large proportion of present and future claimants.

If implemented, the main impact of the recommendation on the way that such claims are litigated will be the shifting of the burden of proof from the claimant to the defendant. It is anticipated and hoped that this will result in generally higher settlements and fewer trials on limitation as a preliminary issue. This author’s view is that the primary beneficiaries of the proposed change in the law would be claimants whose abuse is admitted and for which (vicarious) liability is admitted. Limitation would presumably continue to be contested where one or both of these elements are disputed as it is in these cases that faded memories, document and witness availability are the most relevant to the possibility of a fair trial. The distinction between claims in which liability is admitted versus disputed was not considered by IICSA in its report but this seems to be the way in which they will differ in practice.

There are a couple of aspects in which the recommendation appears to this author to be incomplete. The first is that it does not specify the comparator time by which the “fair trial” test should be applied. One sensible possibility might be the claimant’s 21st birthday so that it is no stricter than any other personal injury claim, another sensible possibility might be a slightly later point in time to reflect the peculiar challenges faced by this group of claimants. The second is that it does not specify what factors should be considered as part of the “fair trial” test, one sensible possibility being an adjusted version of the section 33 factors. Both of these aspects are key to the successful operation of a new “fair trial” test and will need to be comprehensively and carefully considered before and if the recommendation is implemented. This author has no doubt that these aspects will be fine-tuned in the courts in any event, but a clear starting point should be established in the first instance.

It is a paradox of the current position that the passage of time often means that there is more documentary evidence available, more certainty as to the abuse and better evidence of the measurable impact of the abuse on the survivor’s adult life, but simultaneously counts against the survivor on limitation. Abolishing limitation will avoid the problems of this paradox and restore focus on securing compensation reflective of the true value of a claimant’s claim.

The distinction between living claimants and the estates of deceased claimants is an oddity which does not appear to be considered in the body of the report, only included in the recommendation itself. Whilst this author can see that there may well be proof issues preventing the possibility of a fair trial where the survivor is deceased (or indeed preventing the estate from bringing the claim in the first place), it is difficult to understand the blanket exception proposed by the recommendation. Such claims would surely be better dealt with under the new “fair trial” test in the same way as claims brought by living survivors.

There is much to be learnt from other jurisdictions, a point touched on briefly in the IICSA report. Scotland for example abolished time limits for limitation in these claims in 2017 and other countries have done the same. When or if our government looks to implement the IICSA recommendation, it is respectfully suggested that the issues and successes of abolition elsewhere should be carefully evaluated to give our system the best prospects of operating fairly and effectively.

Finally, legislative reform takes time and is not guaranteed by IICSA’s recommendation. That recommendations do not always lead to primary legislation or other change in the law is evidenced by the Law Commission’s 2001 recommendation for a 3 year limitation period in abuse claims (6 years at the time) that only came into effect in 2008 as a result of the House of Lord’s decision in A v Hoare [2008] UKHL 6. The primary difference between 2001 and now is the vastly improved societal understanding of abuse and the complexity of its impact on the survivor and research on the same. Since 2001 we have seen numerous national scandals uncovered, various thought-provoking films about the nature and impact of abuse and a number of official reviews and inquiries into the scale of abuse and how to solve it. IICSA itself was not set up until 2015. So whilst this author endorses the recommendation to abolish limitation and shift the burden of proof, she is cautious as to whether or when we might see it come into effect.

 

The IICSA summary and full reports can be found here.

Megan Griffiths specialises in claims arising from sexual abuse including historic sexual abuse.