Overview of the litigation process
1. The civil justice system aims to resolve disputes between individuals and organisations, and provide remedies for injured parties, often in the form of compensation. Disputes can concern anything from unpaid bills or unfulfilled contractual terms to problems between landlords and tenants, construction-related claims, or defective products. Legal claims arising from child sexual abuse are dealt with as personal injury claims, the purpose of which is to put the complainant back in the position they would have been if the injury had not occurred, through the award of compensation.
2. Civil claims in England and Wales are adversarial. This means that the court adjudicates the dispute between the individuals or organisations involved, known as the parties, who are pitted against each other. The parties instruct their own legal representatives and are responsible for investigating the claims and finding the relevant evidence. If a claim proceeds to trial, the parties’ advocates (or, in some cases, the parties themselves) will present the evidence and make submissions to a judge, who will determine the issues and produce a judgment.
3. The litigation process is governed by the Civil Procedure Rules (CPR), which were introduced in 1998. An overview of the litigation process for non-recent sexual abuse claims is included above.
4. The overriding objective of the CPR is to help the court to deal with cases justly and at proportionate cost.[1] The court must further this objective by actively managing cases – which includes encouraging the parties to cooperate with each other – fixing timetables and generally controlling the progress of the case.[2]
5. The CPR also encourages early settlement of claims. There are a number of pre-action protocols which set out the steps that the court expects claimants and defendants to take before commencing proceedings, including setting out and responding to the allegations in pre-action correspondence.[3] There are different protocols for particular types of civil claims; although there is no specific pre-action protocol for sexual abuse cases, these are covered by the protocol for personal injury claims.[4]
6. If the parties are not able to settle the claim pre-action, a claimant may decide to commence the claim formally at court. This can result in a trial before a judge in a public courtroom. However, it remains open to the parties to settle at any point up until, or during, a trial.
7. The Inquiry heard evidence that the adversarial civil justice system is inherently unsuitable for providing accountability and reparations to victims and survivors of child sexual abuse, particularly in non-recent cases. Many witnesses told us that the litigation process was emotionally challenging and that it compounded the trauma they had already suffered as children. They also felt dissatisfied with the outcome, either because their claims had failed or because they had succeeded, usually by accepting a settlement offer, but they had never received any explanation or apology for what had happened to them and did not feel that justice had been done.