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IICSA published its final Report in October 2022. This website was last updated in January 2023.

IICSA Independent Inquiry into Child Sexual Abuse

Accountability and Reparations Investigation Report

C.1: Introduction

A flow diagram of the overview of the litigation process for the victims and survivors
Long Description

A victim or survivor approaches a solicitor

  1. The solicitor considers the chances of making a successful claim
    • Claim rejected by the solicitor - matter comes to an end
  2. The solicitor takes on the case and seeks funding
    • A privately funded retainer
    • Legal aid
    • Legal expenses insurance
    • A Conditional Fee Agreement
  3. The solicitor investigates the claim in more detail by considering potential witnesses and obtaining relevant documents. The victim or survivor may attend appointments with medical experts to establish the physical and mental injuries suffered as a result of the abuse
  4. In accordance with the Pre-action Protocol for Personal Injury Claims, the solicitor sends a Letter of Claim to the proposed Defendant
    • Based on the Letter of Response, the claim is rejected by the solicitor of the victim or survivor
  5. The proposed Defendant attempts to settle the claim
  6. If the matter is not resolved at this stage, formal proceedings are initial through issuing a Claim Form at court. The parties now become known as the Claimant and the Defendant in civil litigation
  7. The Claimant serves Particulars of Claim formally setting out the legal and factual basis for the claim, along with any medical reports he or she relies on
  8. The Defendant serves a Defence containing their formal response to the Particulars of Claim
  9. A Case Management Conference occurs, at which the court makes directions, lays down a timetable to trial and (unless the Claimant is a minor) sets costs budgets
  10. The parties disclose all remaining relevant documentation they have to each other
  11. The parties prepare and exchange witness statements on the disputed factual matters between them
  12. Unless the Claimants medical reports are agreed, he or she will normally have to attend an appointment with experts instructed by the Defendant. The parties then exchange their medical reports
    • Throughout the litigation, and particularly at this stage, the parties may attempt to settle the claim before it reaches trial. This could be through negotiation, mediation or formal offers of settlement under Part 36 of the Civil Procedure Rules
  13. The experts instructed by the parties convene expert meetings to discuss their respective reports, identify areas of agreement, and confirm and clarify the remaining areas of disagreement
  14. A Pre-trial Review takes place, at which the court ensures the claim is ready for trial
  15. TRIAL: The claim proceeds to a court trial, presided over by a judge. Witnesses and experts will normally be required to give oral evidence and be cross-examined by lawyers, who will also make submissions to the judge on the facts and the law
  16. The trial judge produces a judgement
    • Claim accepted by the court. The Claimant will normally be awarded financial compensation
    • Claim rejected by the court
  17. Either party may seek appeal against an adverse decision. The appeal court may then reject the appeal, allow the appeal but remitthe matter back to the lower court, or allow the appeal and substitute its own decision for that of the court below

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.

References

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