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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 years 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 cases 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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