One of the key recommendations recently made by the Independent Inquiry into Child Sexual Abuse (IICSA) was legislative reform of the Limitation Act 1980 to allow more claimants to pursue civil claims for abuse.
Limitation laws in England and Wales had always been a central theme of focus for IICSA in analysing the experiences of victims and survivors when seeking compensation for abuse through the civil courts. In particular, the law of limitation and its application to abuse claims caused some concern to IICSA in that this had acted as an unfair barrier to claimants pursuing civil claims and their access to justice.
Ian Carroll, Partner and Head of Abuse Law at Keoghs, considers IICSA’s proposals for reform on the law of limitation and provides an analysis of the potential issues and implications.
IICSA received evidence that there were three key stages of the litigation process in which the law of limitation was acting unfairly towards claimants in pursuing civil claims:
In support of the recommendation IICSA also pointed to other jurisdictions who had already taken steps to reform the law of limitation in relation to abuse claims including certain provinces and territories in Canada, Australia and more recently in Scotland.
Whilst IICSA considered some of the potential negative consequences of any reform to limitation laws, including increased insurers’ costs to meet more claims; organisations’ ability to purchase insurance to cover such claims; the financial burden on local authorities and charities and the risk of satellite litigation to interpret any changes in the law, on balance IICSA considered that the anticipated benefits to claimants outweighed these issues.
Accordingly, IICSA recommended the following reform to the law of limitation:
IICSA also considered whether this reform should apply retrospectively to claims where the three-year limitation had already expired. In analysing this further, they 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 would not be possible for them to benefit from any changes in the law.
It is clear that IICSA’s proposed reform is most closely based upon and influenced by the approach Scotland recently took with the Limitation (Childhood Abuse) (Scotland) Act 2017.
In Scotland limitation has been removed, but allows for two potential defences: (1) whether a fair trial is still possible, and (2) whether there has been substantial prejudice caused by the change in the law. The burden also shifts to the defendant with both of these defences. However, whilst IICSA did make reference to a potential “fair trial” defence and the burden shifting to the defendant, this was only in the context of Article 6 of the ECHR and makes no reference to the substantial prejudice defence also seen in Scotland.
Further, in Scotland the removal of limitation in respect of abuse did not just apply to sexual abuse, but also physical abuse, emotional abuse and neglect. By definition IICSA only considered and recommended reforms concerning child sexual abuse. This means that other forms of abuse such as physical abuse would still be excluded from reform and claims for such abuse would still be subject to the usual three-year time limits.
It is also questionable whether simply removing the three-year time limit would have any practical effect on the way in which claims are presented and dealt with by the parties and courts.
As acknowledged by IICSA they received evidence that the defence of limitation as applied now is fundamentally whether it is fair to allow claims to proceed many years after the events and the extent to which cogent evidence remains available despite the passage of time. The Ministry of Justice had previously responded to the suggested reform and acknowledged that it “would remove a first hurdle”. The issue will, therefore, be whether that first hurdle was ever truly determinative of the merits of any claim, and whether the subsequent and more substantial hurdles of the impact of evidence on fair trial and substantial prejudice would still remain in any event.
The only exception where the removal may have some immediate effect is those claimants who are currently subject to the decision in RE v GE, where the Court of Appeal said that once legal advice had been obtained post A v Hoare a claimant must proceed with dispatch and that “one cannot put a cause of action onto the shelf with a view to taking it down again sometime later in the indeterminate future when [they] feel like using it”. Under IICSA’s recommendation there would no longer be any criticism of a claimant who did put a cause of action onto the shelf, but the issue will still be the extent to which a fair trial is no longer possible as a consequence of it being put there.
IICSA has stated that any reform to the law of limitation would not apply retrospectively. This would, therefore, exclude any victim or survivor who had their claim settled by agreement (at a potential discount due to limitation issues) or was dismissed by a court on the grounds of limitation. This raises a number of potential issues.
The proposal to remove the three-year time limit would also only apply to victims and survivors of child sexual abuse. However, there are many cases in which abuse is committed whilst the victim or survivor is under the age of 18, but then continues for many years later into adulthood.
In this respect, there have in the past been some arguments that each occasion of abuse is a separate tort and that a limitation period starts from the date of each tort. Accordingly, it is not clear whether the introduction of a cut-off for the removal of the three-year time limit for sexual abuse up to the age of 18 will mean a victim or survivor is still faced with partial three-year time limit on their allegations of abuse.
It may be that any legislative reform in England and Wales will mirror the approach taken in Scotland, where the Act states that where the victim or survivor was a child on the date that the abuse occurred and where the act of abuse “was a continuing one”, the three-year time limit will not apply from the date the abuse began. Even then, in cases where there might be significant gaps in time between acts of abuse (taking place before and after the age of 18) the potential for satellite litigation around what would constitute a continuing act will be significant.
IICSA has made a clear recommendation on the need for legislative reform of limitation in cases of child sexual abuse. It dismissed the notion that changes to practice such as industry codes or pre-action protocols would be sufficient to achieve the same outcomes.
However, in order to achieve these outcomes it is clear that further clarity and detail on any reform would be required through consultations and working parties to address the number of questions and issues that still remain. It is also a reality in the current climate that legislative reform may be difficult to achieve and it may, therefore, be some time before this government is in a position to be able to properly consider and address IICSA’s recommendation to change the law of limitation in cases of child sexual abuse.
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