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IICSA Independent Inquiry into Child Sexual Abuse

The Roman Catholic Church Investigation Report

Contents

J.2: Civil claims for compensation

4. The Inquiry’s Accountability and Reparations investigation examined the extent to which the civil justice system, criminal compensation and support services promoted accountability and reparations to victims and survivors of child sexual abuse.[1] In this report, we focussed on claims against the Roman Catholic Church in England and Wales.

5. Claims relating to child sexual abuse fall within the ambit of personal injury claims and are usually brought against the institution in which the abuse took place or against those responsible for that institution. This generally means that the claim is brought against the diocese or religious institute on the basis of vicarious liability, the legal principle which may make institutions liable for their employees. Claims may be covered by a public liability insurance policy, but if there is no insurance in place or the insurer cannot be identified due to the passage of time, the institution will be responsible for meeting any successful claims.

Claims data

6. The Catholic Insurance Service (CIS) insures 20 of the 22 Roman Catholic dioceses.[2] As at November 2019, it also provided insurance services to 20 religious institutes.

7. In November 2019, CIS compiled a schedule of claims “Going back as far as records allow”.[3] The schedule indicates that there have been 439 child sexual abuse claims made against dioceses and 49 claims against religious institutes.[4] CIS has paid millions of pounds in compensation and millions more in legal fees.

The role of insurers

8. Kathy Perrin, Chief Executive Officer of CIS, told us that CIS enables the dioceses to bulk purchase insurance and acts as “an advisory body to the Bishops’ Conference on matters relating to insurance and risk”.[5] She explained that when a claim is brought against a diocese, CIS’s role is “to act as an intermediary facilitating effective communication between the dioceses and insurers”.[6] In acting for the diocese her role is to “ensure the diocese is made aware of insurers’ approach to each claim and has an opportunity to question that approach should they wish to do so”.[7]

9. Ms Perrin told us that the dioceses’ insurance policies “have always included” two clauses that affect the way a claim is handled:[8]

  • a claims notification clause, which requires the diocese to notify the insurer “as soon as they are aware of anything which could give rise to a claim[9] and
  • a claims control clause, which in essence means that the insurers “have control of the claim”.[10]

10. The practical effect of the claims control clause means that a diocese will ultimately have to follow the insurer’s approach if they want to be indemnified under the insurance policy. Were a diocese to act contrary to the insurer’s wishes, the diocese would have to pay any costs and compensation.

11. Ms Perrin was asked whether, in her experience, the claims control clause meant that dioceses tended to adopt the insurer’s approach in order to avoid being liable for the costs and any compensation. She said:

It’s certainly a consideration that dioceses have. Dioceses are charities … and they have duties in charity law regarding the protection of their assets and their funds. So it isn’t a simple and straightforward decision for a diocese to walk away from an insurance indemnity because the only funds then left available to pay a claim are charitable funds.[11]

Although she was aware of cases where there have been disagreements, Ms Perrin said that this was not to the extent that a diocese has “walked away from the insurance indemnity”.[12]

Limitation periods in civil claims

12. Research shows that “it is common for victims and survivors of child sexual abuse to delay disclosure”.[13] As set out in the Accountability and Reparations Investigation Report, child sexual abuse claims are, by virtue of the Limitation Act 1980, subject to time limits (known as limitation periods) within which claimants must bring their claims.[14] A claim related to sexual abuse (which is a type of personal injury claim) must be pursued within three years of the abuse or, if later, the date of knowledge of the person abused. If the defence of limitation is raised by the defendant, the claimant must ask the court to exercise its discretion (under section 33 of the Limitation Act) to extend the period within which the claim can be brought.

13. We heard evidence about the use of the limitation defence in this investigation.

13.1. In the Archdiocese of Birmingham case study, RC-A343 told us that during the course of his civil claim for compensation, brought in the mid-2000s, the Archdiocese contested the claim on the basis that the claim was outside the relevant time limit.[15]

13.2. RC-A711 told us that in July 2017 she commenced a civil claim against the Servite Order. Although the claim was settled (without any admission of liability), had the case been contested, RC-A711 said that the Order’s insurer’s solicitors indicated that the limitation defence would have been invoked.[16]

14. The 2018 Bullivant review (discussed in Part B) found that there was a “growing trend, especially evident from the early 1990s onwards, of reporting complaints of so-called ‘historical abuse’”.[17]

Table 3: Average time elapsed between start of abuse and year of complaint

Period of complaint Mean number of years since alleged abuse began
1980 to 1984 2 years
1985 to 1989 4 years
1990 to 1994 11 years
1995 to 1999 17 years
2000 to 2004 21 years
2005 to 2009 31 years
2010 to 2014 33 years
2015 34 years
OVERALL 26 years

Source: CHC001938_018

15. A number of core participants and other witnesses suggested that limitation periods should be removed in child sexual abuse claims or that the Roman Catholic Church should no longer rely on the limitation defence when defending a civil case. Reference was made to the fact that, in October 2017, the law in Scotland changed so that, in general terms, childhood sexual abuse claims were no longer time-barred.[18]

16. Cardinal Vincent Nichols’ personal view of the limitation defence was that:

dioceses should consider a limitation defence only in cases where the passage of time means that a fair trial is no longer possible – for example where the alleged perpetrator is deceased, was not convicted and was not the subject of any other allegations”.[19]

He later clarified that it was only if “all three” of those examples were met that he would expect the limitation defence to be raised.[20] He told us that he had never considered a limitation defence while Archbishop of Westminster and said he was “offered one in Birmingham and I declined to use it”.[21]

17. When asked if there was anything preventing a diocese adopting a practice of non-implementation of the limitation defence, Cardinal Nichols said:

I think it’s a matter that goes beyond canonical responsibilities and control, because we are talking about civil trusts, and they can’t be legislated for through Canon law.[22]

He said that the use of the limitation defence had not been on any formal agenda at the Bishops’ Conference. In Cardinal Nichols’ view:

it would be inappropriate for an ecclesiastical body like the Bishops’ Conference to delve into the responsibilities of separate charitable trusts.[23]

18. The Inquiry will further consider the use of limitation in respect of non-recent child sexual abuse in its final report.

Apologies in the context of civil litigation

19. Ms Perrin told us that in 2007 there were:

tensions between the desire to provide a meaningful pastoral response to victims and survivors and taking action which could compromise the diocese’s legal position or jeopardise the provision of an indemnity in respect of any future potential civil claim”.[24]

The Cumberlege Commission asked the Catholic Church Insurance Association (CIS’ predecessor) to produce a set of guidelines setting out how dioceses could provide a meaningful pastoral response without causing insurance difficulties.

20. Those guidelines, Guidelines for Catholic Church Organisations Responding to Complaints of Abuse, were drafted in 2007 to assist safeguarding coordinators and insurance officers.[25] In relation to apologies, the guidance differs.[26]

20.1. Where no legal action is intimated, the guidance states that where the accused has been convicted or has made admissions “it is often appropriate to acknowledge this to the Complainant and to issue an apology” but that it would not be appropriate to do so where there has been no conviction or admission.[27]

20.2. Where legal action is intimated the guidance states:

Unless otherwise agreed by Insurers, the Organisation must not provide the Complainant with any assistance other than pastoral support … Specifically, the Organisation must not … make any concessions, admissions or apologies in respect of matters relating to the complaint”.[28]

21. Ms Perrin said that at the time these guidelines were drafted, there was a “lack of understanding and knowledge” on the part of safeguarding coordinators about the insurance aspects of claims:[29]

So the safest thing, from that perspective, was to get the claim to the solicitors acting for the insurers and to allow all correspondence to go through that route … 13 years later, that’s relaxed to some degree, in the sense that I know now there is quite a lot of contact between some safeguarding coordinators and some claimants … ”.[30]

22. Ms Perrin said that the current position is that there is no “blanket ban” on a diocese making an apology.[31] It was however:

in their interests not to make any admission or apology … unless they have spoken to the insurers and agreed that with them … There are cases in which it is quite clear that it’s right and proper for an apology to be given. Insurers will recognise that and the apology will be made.[32]

Each year, Ms Perrin said that there were between approximately six and 12 requests, asking insurers to consent to an apology being made.[33]

23. In November 2018, the Catholic Safeguarding Advisory Service (CSAS) asked CIS to draft a new set of guidelines for the handling of abuse claims. The intention is for the guidelines to assist the insurance policy holders but also to be drafted so that victims and survivors can understand the claims process.[34] Ms Perrin said the draft has been “backwards and forwards” between her, CSAS and the solicitors who routinely act for insurers on these matters.[35] At the hearing in November 2019, Ms Perrin said that the guidelines were being consulted on, including by the National Catholic Safeguarding Commission (NCSC) and the SAP. These guidelines remain to be published.

Compensation Act 2006

24. Section 2 of the Compensation Act 2006 states:

An apology, an offer of treatment and other redress shall not in itself amount to an admission of negligence or a breach of statutory duty.[36]

25. However, the Act only refers to negligence or breach of statutory duty cases, and not to vicarious liability cases. Ms Perrin said that in vicarious liability claims “an apology could be regarded as an admission of liability[37] and so, in her view, she thought it would be “helpful[38] if the matter was clarified (whether by amending the 2006 Act or by passing new legislation) to “make it clear that an apology does not amount to an admission of liability”.[39]

26. In the Accountability and Reparations Investigation Report, the Inquiry recommended:

The government should introduce legislation revising the Compensation Act 2006 to clarify that section 2 facilitates apologies or offers of treatment or other redress to victims and survivors of child sexual abuse by institutions that may be vicariously liable for the actions or omissions of other persons, including the perpetrators.[40]

27. In April 2020, in its response, the Government said it recognised:

the positive impact that receipt of an apology can have for victims of child sexual abuse, and the desirability of encouraging institutions to give apologies in relation to such abuse wherever possible … the Ministry of Justice will explore further whether it would be helpful to amend the 2006 Act or take alternative action to clarify that this is the case, and we will update the Inquiry in due course”.[41]

Given the significance of this issue to victims and survivors, the Inquiry would expect the Ministry of Justice to take action sooner. The Inquiry is concerned about the Government’s procrastination over this issue.

References

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