THE PROPOSED CHANGES TO THE LAW OF LIMITATION AND CHILD SEXUAL ABUSE: DOES THIS GIVE RISE TO A PRACTICAL PROBLEM FOR PRACTITIONERS AND VICTIMS?

In a webinar on limitation tomorrow I am considering, among many other issues, the government’s proposals on changes to limitation in child sexual abuse cases. In particular whether there is a practical dilemma for practitioners with actions that are pending.   The Consultation Response makes it clear that the government does not propose to make it possible for victims to reopen already decided or settled cases. However it goes on to state that the new law should apply to all cases that have not yet been settled or dismissed by a court.  This may pose a dilemma for those whose cases are currently being litigated.

“In the interests of equity the Government believes that any change made to the limitation period should apply to all cases that have not yet been settled or dismissed by a court.”

THE WEBINAR

Booking details are available here.

Matters to be covered

• The Government proposals on changes to the law for victims of child sexual abuse.
• Why and how things go wrong with limitation
• What assumptions should I make about the “date of knowledge”
• Why limitation periods are not always three years
• How and when you use Section 33
• Avoiding problems with limitation

THE GOVERNMENT PROPOSALS ON ALTERATIONS TO THE LIMITATION PERIOD

There is no draft legislation yet. However the Government Response to Consultation makes it clear that the proposal is that the limitation period be abolished in relation to child sexual abuse claims, with the proviso that the action may not proceed if the defendant establishes that it is not possible for a fair hearing to take place.

NO RE-OPENING OF OLD CASES – BUT THE LAW WILL APPLY TO PENDING CASES

The Consultation Response makes it clear that the changes will not enable victims to re-open already decided cases.  However it will apply to cases that are pending.  This may give rise to a practical difficulty for those bringing proceedings at the moment as to whether it is prudent (and whether it is possible) to delay trial until after the law is changed.

THE QUESTIONS AND RESPONSES

Should the three-year limitation period for personal injury claims be removed for
claims brought by victims and survivors of child sexual abuse in respect of their
abuse?

While courts currently have the discretion to allow claims to proceed it seems clear that
removal of the limitation period would send a clear message of the Government`s
intent that victims and survivors of child sexual abuse should not have to suffer the
further injustice that responses to this consultation show a limitation period may
impose.

The Government recognises concerns about ensuring the right of defendants to a fair
trial is protected and as recommended by the IICSA, would seek to ensure that any
legislative changes in this area expressly recognise the importance of a fair trial.
In addition, the Government also agree with the IICSA`s recommendation that this
reform should not apply where a case has already been determined or settled in court.

2. Should the burden of proof be reversed in child sexual abuse cases so that an
action can proceed unless the defendant can satisfy the court that it is not
possible for a fair hearing to take place or that he/she (the defendant) would be
substantially prejudiced were the action to proceed?

Government Response

The Government is grateful for the many responses on this question and notes the
strong overall support for reversing the burden of proof in child sexual abuse cases so
that an action can proceed unless the defendant can satisfy the court that it is not
possible for a fair hearing to take place or that he/she (the defendant) would be
substantially prejudiced were the action to proceed.

As indicated in the consultation, the government’s position is that it supports this option
in view of the exceptional nature of historic child sexual abuse claims. The Inquiry
recorded what a harrowing and difficult process this is for victims and survivors who
may lack faith in institutions and those in authority to take their claim seriously and
objectively. This reform would make that process a little less difficult.

If there were to be changes to limitation law or judicial guidance for child sexual
abuse cases, should claims that have already been adjudicated or settled be
allowed to be reopened

Government Response
The Government agrees with those that have argued that certainty and finality are
among the key aspects of the rule of law. Therefore, this option will not be pursued. We
also note this was the conclusion which the IICSA came to after their in-depth
examination of the issue.

6. Should any change to limitation law or judicial guidance apply where the
limitation period has expired but claims have not yet been settled or dismissed
by a court?

Government Response
In the interests of equity the Government believes that any change made to the
limitation period should apply to all cases that have not yet been settled or dismissed
by a court.