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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.6: Limitation

41. The Limitation Act 1980 imposes time limits, known as limitation periods, within which claimants must bring their claims. The purpose of limitation periods is to strike a balance between the rights of claimants to bring claims and the interests of defendants in not having to defend historic cases when, for example, it may be difficult to establish what happened due to the passage of time. The imposition of limitation periods is also in the general public interest, as it allows individuals and institutions to arrange their affairs (including, for example, in taking out insurance or destroying documents), without the fear of facing litigation at some indeterminate time in the future.

42. 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 their abuse was the result of systemic negligence, to which a three-year limitation period applied that was extendable.

43. This distinction between the limitation periods for deliberate assaults and negligence led to unfair outcomes. In AR-A23’s claim against Bryn Alyn, for example, the judge accepted that she had been sexually assaulted by John Allen. However, he did not accept that any negligence had occurred and so rejected her claim on the basis that she was outside the non-extendable limitation period of six years.[1]

44. The Court of Appeal subsequently dismissed AR-A23’s appeal,[2] although one of the appeal judges commended the proposal of the Law Commission in 2001[3] that all claims for personal injuries, whether negligence or assault, be subject to the same extendable limitation period of three years. The judge commented that “statutory implementation of it would obviate much arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.[4]

45. The Law Commission’s proposal was never implemented by Parliament. However, the law did finally change in 2008, when the House of Lords decided in A v Hoare that the extendable three-year limitation period for personal injury claims should apply to all claims of sexual abuse.[5] This period runs from either the date when the injury occurred or the date of knowledge[6] of the individual claimant. However, in all cases involving children, the limitation period does not start to run until the claimant reaches adulthood at the age of 18. All claimants therefore have until at least the age of 21 to commence legal proceedings.[7]

46. Despite these developments in the law, the Inquiry heard that one of the most challenging legal issues for victims and survivors of non-recent child sexual abuse remains the limitation period. Very few victims and survivors of child sexual abuse bring their claims before the age of 21.[8] Consequently, if the defence of limitation is raised by the defendant,[9] they must ask the court to exercise its discretion under section 33 of the Limitation Act to allow their claims to proceed.

Section 33 factors

47. 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[10] of the claimant;
  • the extent to which the claimant acted promptly and reasonably once they knew that 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.[11]

48. Defendant representatives emphasised the importance of being able to have a fair trial (which includes consideration of whether the evidence is less cogent due to any delay). Alistair Gillespie said limitation:

“is a question of whether the court can conduct a fair trial in relation to the issues in the claim … It’s not simply a question of whether the abuse can be proved or not; it’s actually a question of whether delay in bringing the claim has prejudiced the defendant’s ability to investigate.”[12]

49. Philippa Handyside, General Counsel of the Association of British Insurers (ABI), thought that in the civil justice system there is “a requirement of natural justice that parties should be able to defend themselves and that serious allegations ought to come up to a certain standard of evidential proof.”[13]

50. The issue of whether or not a fair trial will be possible years later is clearly important, as was recognised by the House of Lords in A v Hoare:

“Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations – see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.”[14]

51. However, the courts have made it clear that whether a fair trial can take place is not the only issue to be taken into account. They must also, for example, consider why the claimant has delayed in bringing a claim.[15] Many victims told us how hard it is for them to disclose details of their sexual abuse as children, and how it can take many years to be able to do so.[16] Witnesses spoke of feeling ashamed, guilty, distrustful and angry,[17] of trying to forget or block out the memories[18] and of having previously been let down by adults in positions of authority when they tried to disclose abuse as children.[19] They found it difficult to accept that they were expected to bring claims earlier.[20]

52. These are all factors that the courts do take into account when considering a delay in bringing a claim. Tracey Storey told us that the courts are “more generous on time with sexual abuse because of the fear, shame and humiliation involved in sexual abuse”.[21] However, whilst there was an “increasing understanding of the dynamics of sexual abuse”, she did not think “our court system is particularly set up to understand the dynamics”.[22]

53. A number of claimant representatives felt that the law of limitation was unfair to victims and survivors of child sexual abuse, and that it should be changed.

53.1. Paul Durkin said “I’m not convinced the judiciary is, at the moment, capable of dealing with these cases properly … I’m not sure that section 33 is the correct instrument to deal with these claims in a compassionate way”. He also said that without “legislative change … we’re relying upon the commercial necessities of an insurance company … I don’t think we can trust the insurance industry to do the right thing”.[23]

53.2. Peter Garsden said “to punish a victim of abuse for delaying, when psychologically, they’re unable to deal with the thing, because they’re so traumatised by it, is like punishing a victim twice”.[24] He told us:

“I have come to the conclusion that we should replace it and do something with it, but we have to be very careful what we replace it with to make sure that we don’t open the door to more technical defences.”[25]

53.3. Henry Witcomb QC, one of the counsel who represented the claimants in the Forde Park litigation, said that there should be a suspension of limitation:

“so that people can just bring their claims, and if they’re good claims, they are good claims, and if they’re bad claims, they’re bad claims, and they should be then tried, and we can then attempt to have some closure on what has been a disgraceful period in our history”.[26]

54. However, this view was not shared by all claimant representatives. Billhar Singh Uppal said:

“I don’t think there is anything about child sexual abuse cases that in itself should prompt us into having a different period. I’m sure there would be lots of other groups out there who would say, ‘Well, we should be just as deserving’.”[27]

He was also unsure that “by tinkering or disposing of the limitation periods, as has been advocated, it’s going to solve the problem”. He told us that “we are all lawyers, there are going to be ways around it”.[28]

55. Carolyn Mackenzie told the Inquiry that the “biggest area of divergence” between claimant and defendant representatives is over the question of whether there should be “a complete removal of limitation as a defence”. She explained that defendants still see limitation as an “equitable defence”,[29] which is borne out by the evidence we heard on the extent to which it is raised by defendants (discussed further below).

References

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