Limitation and Redress

This week, the Government provided its response to the Final Report of the Independent Inquiry into Child Sexual Abuse (‘IICSA’). In this article, Christopher Wilson, Associate, considers the Government’s response to the Inquiry’s specific recommendations in respect of the removal of the three-year limitation period for personal injury claims and the introduction of a National Redress Scheme for victims and survivors of child sexual abuse and exploitation in England and Wales.

Background

In October 2022, IICSA published its Final Report, which included various recommendations. Two of the key recommendations were:

1. Legislative reform of the Limitation Act 1980 to allow more claimants to pursue civil claims for abuse.
2. The introduction of a single National Redress Scheme in England and Wales for victims of abuse.

Limitation

IICSA recommended the following reforms to the law of limitation:

1.  The usual three-year time limit for claimants to pursue civil claims for personal injury to be specifically removed in claims for child sexual abuse; and
2. The ‘right to a fair trial’ would remain, but the burden would be on the defendant to demonstrate that a fair trial was no longer possible.

IICSA drew a clear distinction between claims which had already been either settled or dismissed by a court and those which had not. It determined that those claims which had already been adjudicated upon or settled by agreement would not be subject to any changes in the law.

A more detailed summary and analysis of IICSA’s recommendation in respect of limitation can be found in our article from October 2022, which can be found here.

The Government’s Response

The Government has accepted and acknowledged that there is a critical issue that IICSA is attempting to resolve by making its recommendation and it will publish a paper later in the year which will explore the options on how the existing judicial guidance in child sexual abuse could be strengthened as well as setting out options for the reform of limitation law in child sexual abuse cases.

Redress

Victims and survivors of child sexual abuse and exploitation in England and Wales would be eligible to apply for redress via a new National Scheme, provided they had experienced child sexual abuse and exploitation with a “clear connection” to state or non-state institutions. Any previous award of compensation received by an application should be deducted from any payment under the scheme and applicants who have previously brought civil claims, which have been rejected by the court, should be excluded from applying, save where their cases have been rejected due to limitation.

Payments to eligible applicants are to be made via a two-tier system: (1) a fixed flat-rate recognition payment; and (2) the option to apply for a second-tier payment. Streamlined checks and verification of applicants should be made, but they should not be adversarial, and special provisions to accelerate awards for older or terminally ill applicants would be implemented. The Scheme itself should run for five years and be funded by central and local government, in accordance with devolved funding principles, with voluntary contributions sought from non-state institutions and insurers.

A more detailed summary and analysis of IICSA’s recommendation in respect of a National Redress Scheme can be found in our article from November 2022, which can be found here.

The Government’s Response

The Government has accepted the need to introduce a redress scheme to acknowledge the institutional failures that led to the suffering of victims and survivors. However, the details of the scheme itself, including the key components of eligibility, types of redress available, the extent of any financial component, and application process, will be considered further following extensive engagement, including with victims and survivors, third sector organisations, local authorities, insurers and lawyers.

Comment

While the Government has apparently accepted that an issue exists in respect of the Limitation Act, its response does little to acknowledge what this issue is or that IICSA’s recommendations are the way to resolve it. Instead, the Government will apparently engage in a further period of consultation, with no indication given as to how long that process will take. While it can be presumed that IICSA’s recommendation will be an option that will be considered, there is no positive declaration by the Government that significant reform to the law of limitation is on the cards. Therefore, it remains to be seen whether the three-year limitation period for personal injury cases will survive or whether a new system altogether will be introduced, and many of the questions raised when the Report itself was published in October 2022 remain unanswered.

Overall, the Government’s response in respect of a National Redress Scheme offers little other than an acceptance that a scheme ought to be introduced. Many key questions remain unanswered, most notably what the scheme itself will look like and how it will be funded. While it is of course inevitable that the introduction of such a scheme will be extremely complex and time-consuming, the Government’s response provides little comfort to those victims hoping to benefit from it and little clarity to those organisations who might be requested to contribute to its funding. No indication is given as to how long the further consultation process will take, except for an assertion that the process will be launched ‘shortly’ and, ultimately, it remains to be seen whether the Government intends to take any real steps to get the scheme up and running prior to the general election in 2024.