Response to Government Consultation on Limitation in Abuse Cases by Hodge Jones and Allen
From 15 May to 10 July 2024, the previous Government ran a consultation on limitation in abuse cases. In particular, the consultation sought to consider the recommendations made by the Independent Inquiry into child sexual abuse regarding limitation law and views on the various options regarding a change in approach to limitation.
Hodge Jones and Allen prepared and submitted a response to the consultation, a copy of which can be viewed here.
In short, we recognise the particular difficulties and barriers to disclosure that survivors of abuse (be it sexual, physical or emotional) face. It can take many years for individuals to come forward and feel able to speak to someone about the abuse. In particular, it is common for individuals to feel shame, fear of not being believed, guilt or anxiety about the repercussions of disclosure. Often, the impact of abuse on survivors’ mental health is significant, and this again can prevent or hinder their ability to speak out.
Presently, civil claims for abuse are subject to the same three year time limit as personal injury claims (or in cases regarding the abuse of a child, the three year limitation period runs from the individuals 18th birthday and expires on their 21st). The court does have discretion, under s33 of the Limitation Act 1980, allow claim to go ahead despite being out of time where there are compelling reasons for the delay – and a fair trial is still possible for both parties. The burden of persuading the court to extend the limitation period falls on the claimant.
The Limitation Act is almost 45 years old. At the time of its drafting, the issue of child abuse – be it sexual, emotional or physical, was not particularly considered a matter of litigation and was not a topic that was widely reported on or subject to media attention. In more recent years, the posthumous identification of Jimmy Savile in 2012 as having abused numerous children and young adults over decades, led to thousands of individuals feeling able to come forward and disclose their own experiences of abuse. In 2014, the Independent Inquiry into Child Sexual Abuse (IICSA) was set up. One function of the Inquiry was to make recommendations for change, and in particular, a change to legislation was recommended to ensure:
- the removal of the three-year limitation period for personal injury claims brought by victims and survivors of child sexual abuse in respect of their abuse; and
- the express protection of the right to a fair trial, with the burden falling on defendants to show that a fair trial is not possible.
IICSA recommended that the above should apply whether or not the current three-year limitation period has already started to run or has expired, except in those cases where claims have been either settled by agreement between the parties or dismissed by a court.
The matter of child abuse is now an issue that is, quite rightly, taken extremely seriously and the approach taken to investigating allegations and disclosures is largely much improved. To that end, it is on our view, entirely appropriate that a root and branch review of limitation in abuse cases is undertaken and that the three-year limitation period is removed and that it is for the defendant to show that a fair trial, due to a delay, is no longer possible.
Olivia Coffey, a senior associate in the Civil Liberties & Human Rights team, has many years’ experience in acting for victims of recent and non-recent sexual assault and abuse. She can be contacted directly by emailing ocoffey@hja.net or by calling 0808 296 7694.