79. The implementation of the above recommendations is vital to improving the experience of victims and survivors of child sexual abuse seeking redress through the civil justice system. However, one particular area of concern remains the law of limitation, to which the Inquiry stated it would return.^[1]

80. The law of limitation aims to strike a balance between the rights of claimants to bring claims and the interests of defendants where it may be unfair or impossible to defend cases long after the events in question have taken place – when, for example, it may be difficult to establish what happened due to the passage of time. It does so by setting statutory time limits, known as limitation periods, after which claims can no longer be pursued.^[2] Limitation is a procedural defence, meaning that claims are not automatically time-barred but instead defendants must actively raise the issue of limitation in response to receiving a claim. For victims and survivors of non-recent child sexual abuse, the imposition of limitation periods is one of the most challenging legal issues they face.^[3]

81. For many years, the courts considered that sexual abuse was a deliberate act to which a fixed, six-year limitation period applied. Some, but not all, claimants were able to avoid the application of this period by arguing that the sexual abuse was the result of systemic negligence to which a three-year limitation period applied that was extendable.^[4] In 1996, the imposition of the fixed limitation period was the subject of an unsuccessful legal challenge before the European Court of Human Rights in Strasbourg. The Court’s judgement affirmed the importance of limitation periods in civil claims but also recognised that the developing awareness of the psychological effects of child abuse on victims and survivors might justify special provisions for their claims.^[5]

82. In its 2001 report on the law of limitation, the Law Commission considered whether child sexual abuse claims were so unique that they should be subject to no limitation period at all. However, it recommended that all personal injury claims, whether for negligence or assault, should be subject to the same extendable period of three years.^[6] This was not implemented by Parliament but, in 2008, the House of Lords reached the same conclusion in the case of A v Hoare.^[7] Since then the extendable three-year limitation period for personal injury claims has applied to claims of sexual abuse.

83. The three-year limitation period runs from either the date when the injury occurred or the date of knowledge of the individual claimant.^[8] Knowledge in this context may include actual knowledge that the injury was significant (which may not always be apparent to those who have suffered sexual abuse during their childhood). It may also comprise constructive knowledge that a claimant “might reasonably have been expected to acquire”.^[9] However, in all cases involving children, the limitation period does not start to run until the claimant reaches the age of 18. All claimants therefore have until at least the age of 21 to commence legal proceedings.^[10]

84. Very few victims and survivors of child sexual abuse bring their claims before the expiration of the limitation period. Consequently, if a defendant raises the defence of limitation, victims and survivors must ask the court to exercise its discretion to allow their claims to proceed.^[11] In deciding whether or not to exercise its discretion, the court must consider all of the circumstances of the individual case, and in particular:

• the length of, and reasons for, the delay in bringing a claim;
• the extent to which the evidence is less cogent than if the claim had been brought within time;
• the conduct of the defendant after the claim was brought;
• the duration of any disability of the claimant;^[12]
• the extent to which the claimant acted promptly and reasonably once they knew there was a possibility of bringing a claim; and
• any steps taken by the claimant to obtain medical, legal or other expert advice, and the nature of any such advice.^[13]

85. As set out in the Inquiry’s Accountability and Reparations Investigation Report, the Inquiry received evidence that the defence of limitation operated unfairly in the context of child sexual abuse claims.^[14] Additional evidence obtained subsequently by the Inquiry suggested that the defence of limitation continues to operate unfairly as a barrier to claimants at three key stages of the litigation process.

85.1. Taking on claims: Although the figures either could not be given or varied amongst claimant solicitors, the Inquiry was told that limitation prevented many solicitors from taking on a significant proportion of child sexual abuse claims.^[15] Legal representation or funding cannot be obtained unless it is likely that the claim will succeed.^[16] The Ministry of Justice recognised that this impacts upon access to justice for victims and survivors.^[17] In addition, claimants may find it off-putting to have to persuade a court to be allowed to bring their claim notwithstanding its merits.^[18]

85.2. Settlement and value of claims: A number of claimant solicitors indicated that limitation was a significant factor during the process of valuing and settling claims, with one referring to it as an “ever-present threat”.^[19] They explained that victims and survivors may have to be advised that it would be better to accept a reduced settlement offer, rather than proceed to court where there is not only a risk of losing on limitation but also a risk of being re-traumatised by the trial process.^[20]

85.3. Trial: While there appears to be greater judicial understanding of how the effects of child sexual abuse on victims and survivors may lead to delays in bringing claims, there is little doubt that the trial of limitation issues can be intrusive and traumatic for claimants and the outcome difficult to predict.^[21] Although relatively few child sexual abuse cases proceed to trial,^[22] one claimant solicitor made the point that contested cases “set the tone in which other cases are resolved”.^[23]

86. A number of defendant solicitors and insurers accepted that limitation presented a barrier to justice for victims and survivors.^[24] They were broadly open to some form of reform, and in some cases supportive of it, provided that any change preserved the defendant’s right to a fair trial.^[25] Witnesses queried, however, whether changes to the law of limitation would make a difference in practice.^[26] It was stressed that the defence of limitation is fundamentally about whether it is fair to allow claims to proceed many years after the events in question due to evidential issues.^[27] The Ministry of Justice recognised that it “would remove a first hurdle … and may help to alleviate some of the uncertainty and discouragement that claimants currently experience”. It was therefore willing to “consider the merits of such a change further should the Inquiry consider that to be a useful route to prevent the risk of meritorious claims being deterred”.^[28]

87. The courts have made it clear that whether a fair trial can take place is not the only issue to be taken into account. One of the other issues to consider is the claimant’s reasons for delaying in bringing a claim.^[29] One claimant solicitor said asking clients about the length of and reasons for delay was the “single-most traumatic feature of this type of litigation”.^[30] Some witnesses were asked why a claimant should have to explain any delay, with the response being that defendants simply had to work with the law as it is at present.^[31]

88. The need for legislative reform was questioned by some defendant representatives, who suggested that changes could be made to legal procedures (for example, through codes of practice or a pre-action protocol), rather than the substantive law.^[32] Other witnesses suggested that even if the law were changed, such procedural changes could still be beneficial.^[33] As set out above, some defendant insurers have already developed guidance restricting the use of the limitation defence and changed their approaches to this issue.

89. However, legislative reform is also needed. Changes to practice are insufficient in the current framework within which claims are litigated.^[34] It is noteworthy that other jurisdictions around the world have reformed the law of limitation relating to child sexual abuse claims (and other forms of childhood abuse), including provinces and territories in Canada, states and territories in Australia, as well as in Scotland.^[35]

90. It is clear that the current regime was not designed with the needs of victims and survivors of child sexual abuse in mind.^[36] As set out in Victims and Survivors’ Voices and Part F, victims and survivors face a number of barriers to disclosure such that it can take years, if not decades, for them to feel able to discuss their sexual abuse. Research by the All-Party Parliamentary Group on Adult Survivors of Childhood Sexual Abuse indicates that the average time for victims and survivors to disclose sexual abuse is 26 years.^[37] The overwhelming majority of claims are not brought within three years of the sexual abuse.^[38] The starting point is therefore that most claimants are deemed to be ‘too late’ and must apply to the court to allow them to proceed. Having to justify any delay in bringing their claims adds a further and unnecessary burden to what is already a difficult process.^[39]

91. Victims and survivors of child sexual abuse have different needs and require different treatment from personal injury claimants more generally. The very nature of child sexual abuse can make it difficult for victims and survivors to discuss their experiences.^[40] As Lady Hale stated in 2008:

“Until the 1970s people were reluctant to believe that child sexual abuse took place at all. Now we know only too well that it does. But it remains hard to protect children from it. This is because the perpetrators are so often people in authority over the victims, sometimes people whom the victims love and trust. These perpetrators have many ways, some subtle and some not so subtle, of making their victims keep quiet about what they have suffered. The abuse itself is the reason why so many victims do not come forward until years after the event. This presents a challenge to a legal system which resists stale claims.”^[41]

92. The Inquiry has considered a number of potential negative consequences to any change in the law, including:

• increases to insurers’ costs due to increased volume of claims;^[42]
• institutions’ ability to obtain insurance;^[43]
• financial burdens on local authorities, or other organisations such as charities;^[44] and
• the risk of ‘satellite’ litigation (additional litigation connected to the main legal case) interpreting any changes in the law.^[45]

It is difficult to predict with any certainty the extent to which a change in the law may lead to these consequences, although the Inquiry notes from the evidence of a number of witnesses that the risks of this occurring may be overstated.^[46] In any event, the benefits of changing the law far outweigh any potential negative consequences. Reforming the law recognises that the sexual abuse itself is the reason for the delay and removes an unfair barrier to obtaining redress through the civil justice process.

Legislative reform

93. The principal options for legislative reform include the removal of the three-year period for personal injury claims based on child sexual abuse, either with or without preserving any other procedural form of defence to claims, such as the right to a fair trial.

94. Other potential options include extending the primary limitation period (for example, to 25 years) and amending the power to extend time in section 33 of the Limitation Act 1980. However, the former would just introduce a different but equally arbitrary time limit, and the latter would still leave the burden on claimants to persuade the court to disapply the time limit.^[47]

95. A change to the law of limitation may engage defendants’ rights under the European Convention on Human Rights (ECHR). It may not be necessary to include an express fair trial provision, as the right is already enshrined in the common law and under the Civil Procedure Rules and Article 6 of the Convention.^[48] However, doing so has the benefit of providing clarity and recognises that the removal of the primary limitation period does not compromise defendants’ basic rights.^[49] It should be for defendants to demonstrate that a fair trial is not possible.^[50]

96. Legislative changes should apply to all claims where the three-year limitation period has not yet expired, that is, where the victims and survivors are under 21 when the changes come into force, and those where the sexual abuse has not yet occurred.

97. The Inquiry has considered whether the removal of the limitation period should also apply retrospectively to claims where the limitation period has expired. There is a distinction to be drawn between two types of claim:

• Claims which have not been dismissed by a court or settled: In these cases, victims and survivors may still be able to bring claims against defendants, albeit with the court’s permission to extend the limitation period under section 33. Here the interests of justice outweigh any potential prejudice to the defendants and the primary limitation period should be removed. This will also benefit those victims and survivors who have previously tried, but not been able, to proceed with claims due to advice received about limitation.^[51]
• Claims which have previously been dismissed by a court or settled: The law of limitation has caused many victims and survivors difficulties when seeking to bring claims. However, these difficulties must be balanced against principles of legal certainty, finality and fairness. It is generally inappropriate and impractical to reverse a judicial determination or an agreement reached in good faith by litigation parties.^[52] Changes to the law of limitation should therefore not allow such claims to be re-opened. However, claimants who have had their claims previously dismissed by the court on grounds of limitation, or have previously settled their claims, may still be able to apply to the redress scheme recommended in Part I.

98. The Inquiry therefore recommends that the limitation period should be removed in all cases involving child sexual abuse, other than those that have been dismissed or settled, while preserving the right to a fair trial.