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Limitation in abuse cases - certainty at last?
12 October 2007
On 1 November 2007 Browne Jacobson will be representing two
respondents in a number of appeals that are listed before
the House of Lords. We are instructing Kate Thirlwall, QC and
Steven Ford. All of the appeals arise out of cases where claimants
are seeking damages for sexual abuse. In four cases the respondents
are Local Authorities. In one case the respondent is Catholic Care
– Dioceses of Leeds. In the final case the respondent is an abuser
himself. For obvious reasons, this last case A –v- Hoare,
has attracted the most publicity. The claimant was subject to
a very nasty sexual attack by Mr Hoare who had a history of sexual
offences. He was subsequently convicted. More than six years after
the attack took place, and whilst he was on day release from
prison, Mr Hoare bought a lottery ticket and subsequently won over
£7m. His victim then claimed damages against him for the assault.
The Court has held that her case is statute barred.
Together, these six cases will enable the
House of Lords to revisit the law on limitation as it affects child
abuse cases. However, the decision may have wider reaching
consequences. In the recent past the Court of Appeal has expressed
its dissatisfaction with the state of the law on limitation as it
stands at present and readily gave some of these appellants
claimants permission to appeal to the House of Lords so that "the
House can consider if it can do anything to rescue the law from its
incoherent state without the intervention of Parliament". In 2001
the Law Commission recommended that Parliament should pass
legislation to effect the very change to the law that the
appellants are now asking the House of Lords to effect
judicially.
So what happens next?
It is difficult to predict what the outcome of
these appeals may be. One of the potential outcomes is that the
primary period for victims of assault will be a shortening of the
primary period from six to three years, albeit that the period
might be capable of being extended. It is also difficult to predict
when the House of Lords may deliver their judgment. These things
take time. The last time we were involved in a social services case
in the House of Lords there was nearly a year's gap between the
House of Lords hearing the appeal and delivering their opinion.
For the time being, the following general
guidance may be of assistance to those defending sex abuse
compensation claims which are, at first sight, statute barred:
- Expect claimant solicitors to consistently ask for either a
stay, where proceedings are issued, or a "limitation freeze"
pending the outcome of these appeals
- Whether or not a stay or a freeze is appropriate or in the
interests of the defendant will depend on each case's own
facts
- Be aware, however, that where the Legal Services Commission
funds cases, the claimant may not have funding to progress the
case
- It is conceivable that the effect of these appeals will be to
render not only employers of people who abuse liable for historical
abuse cases, but also the alleged assailants themselves.
Accordingly, it is going to be more increasingly important in
physical and sexual abuse cases to try and trace the alleged
assailants at an early stage
- For the time being, we recommend that defendants do what they
can both to protect and avoid the destruction of relevant documents
and to trace witnesses. Whatever happens, it is likely that the
cogency of the surviving evidence is going to be very important in
each and every case
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