The Government has now released a consultation seeking views on how limitation law can be reformed to allow more claimants to pursue civil claims for abuse.
This consultation is to give effect to one of the key recommendations made by the Independent Inquiry into Child Sexual Abuse (IICSA). The Government had already accepted and acknowledged that there was a critical issue that IICSA was attempting to resolve by making its recommendation and indicated that it would publish a paper to explore the options for the reform of limitation law in child sexual abuse cases.
The consultation explores the background to the recommendation made by IICSA as well as other domestic and foreign jurisdictions that have already taken steps to reform limitation laws in cases of abuse.
As a result, the consultation now invites responses concerning eight potential options for reform:
- Complete removal of the three-year limitation period in child sexual abuse cases: This was precisely the recommendation made by IICSA. At this stage, the Government has stated that its opening position is that it does not support this option. However, “that position is also taken on the basis of additional reforms being made to the current system to amend the law…” as set out in the other options below.
- Reverse the burden of proof in child sexual abuse cases: Again, this was another aspect of the recommendation made by IICSA so that the burden would be on the defendant to demonstrate that a fair trial was no longer possible. The Government’s position at present is that it supports this option in view of the exceptional nature of non-recent child sexual abuse claims.
- Codify existing judicial guidance: This would give effect to the Court of Appeal’s guidance in Chief Constable of Greater Manchester v Carroll [2017] EWCA Civ 1992 which provided a summary of the principles a court must consider when exercising its discretion under section 33 of the Limitation Act 1980. The Government’s position on this option is that “there would be merit in codifying existing judicial guidance and putting it on a statutory footing.”
- Allow the reopening of claims that have already been adjudicated or settled: This was a proposal which IICSA specifically opposed. IICSA considered whether any reform should apply retrospectively to claims where the three-year limitation had already expired and drew a clear distinction between claims which had already been either settled or dismissed by a court, and those which had not. IICSA determined that in relation to those claims which had already been adjudicated upon or settled by agreement, it should not be possible for them to benefit from any changes in the law. At present, the Government supports IICSA’s views and stated: “that it would not be appropriate to legislate to enable claims which have already been determined to be reopened.”
- Extending the definition of abuse (beyond sexual abuse): The Government acknowledges that IICSA was focused solely on the sexual abuse of children rather than other forms of abuse such as physical and/or emotional abuse. It acknowledges that other jurisdictions such as Scotland have a wider scope of abuse, and others such as Ireland and provinces in Canada limit the provisions to sexual abuse. On this basis, the Government’s position is that “the reforms should be limited to child sexual abuse claims as the case for reform has been comprehensively explored by the Inquiry in that specific group of cases.”
- Adjusting the factors in section 33 of the Limitation Act in relation to child sexual abuse cases: Section 33 of the Limitation Act 1980 contains guidance and factors to enable courts to exercise discretion in extending time limits in personal injury claims. These are the same factors which are considered in abuse claims. However, the proposal is to amend section 33 to include factors specific to sexual abuse claims, mostly around child sexual abuse being identified as a specific justification for delay and avoid the need for the courts to examine the reason for delay. One identified concern in the consultation is constraining the courts when exercising its equitable discretion. The Government offers no view either way on this proposal and welcomes views from respondents on the case for and against this reform.
- An extended limitation period for child sexual abuse cases: Rather than the standard 3-year limitation period, the proposal is to apply a much longer limitation specific to child sexual abuse claims, e.g. 25 to 30 years. This would recognise the reality that victims and survivors of child sexual abuse take many years to be able to disclose the abuse they suffered. However, concern is identified about still having to apply the same factors to disapply the time limits and excluding other victims of other crimes who would not benefit from an extended limitation period. On this basis, the Government indicates that “it is not minded to set a different fixed limitation period for child sexual abuse claims, but it welcomes views on the point.”
- Procedural reform: This is in the form of a new bespoke pre-action protocol for child sexual abuse claims. Attempts had been made in the past to attempt to agree the contents of a draft pre-action protocol between claimant and defendant representatives. This resulted in differing drafts being prepared and, ultimately, these were not carried forward. This option is, therefore, an opportunity to renew these discussions in attempting to agree a pre-action protocol specific to abuse claims. However, IICSA previously dismissed the notion that changes to practice such as industry codes or pre-action protocols would be sufficient to achieve the outcomes it has proposed. The Government has stated that it “is open minded on whether there should be a bespoke pre-action protocol for child sexual abuse claims and would welcome views.”
This consultation represents an opportunity for all stakeholders to give serious consideration to the recommendations by IICSA on the issue of limitation and potential reform, highlighting both potential positive and negative consequences of reform. Given the potential implications, this is a consultation which requires input from all stakeholders to shape any reform in a way which is fair to all parties and achieves intended outcomes.
The consultation closes on 10 July 2024.
