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historic abuse cases - light at the end of the tunnel?

30 January 2008

In a landmark judgment handed down today, the House of Lords has effectively extended the deadline for some abused victims seeking compensation from their abusers. Five of the six cases before the House were historic child abuse cases and in each case, the claimants made allegations of serious sexual abuse against an employee of the defendant. Browne Jacobson acted for three of the Respondents in these Appeals.

The old law

A claimant had two causes of action in these types of abuse claims. He could allege that the defendant negligently monitored the alleged abuser thus allowing the abuse to take place, alternatively he could allege that the defendant was vicariously liable for the abusers actions. The latter approach was easier to prove.

So, why didnt claimants always allege vicarious liability? In Stubbings -v- Webb 1993 the House of Lords decided that a deliberate sexual assault was caught by section 2 of the Limitation Act 1980 (the Act), this meant that from a childs 18th birthday they had a non-extendable six-year limitation period in which to bring a claim. As soon as a claimant turned 24 his claim for deliberate assault was statute barred. However, a claim in negligence alleging that the defendant failed to monitor the alleged abuser was caught by section 11 of the Act, which attached a three-year limitation period, a period that could be extended by virtue of section 14 and section 33 of the Act.

The decision meant that claimants over 24 years old had to plead increasingly inventive breach of duty claims in order to bring their case within section 11 of the Act. This increased the costs of claims and the time taken to resolve them. More importantly, it created a perceived injustice - why should a claimant aged under 24 only have to prove that abuse took place, whereas a claimant aged 25 would not only have to prove the abuse, but prove it took place as a result of organisational negligence?

The new law

Following todays decision a claim against a defendant alleging sexual abuse by its employee is now caught by section 11 of the Act, however the claim pleaded. This means that the extendable three-year period will apply to all cases. Whilst on the face of it this decision appears to reduce the limitation period, what it actually means is that a claimant who issues his claim after his 21st birthday can continue with his claim if:

  1. He proves that his date of knowledge of a significant injury was within three years of bringing his claim under section 14 of the Act (knowledge) or
  2. He persuades the court to exercise its discretion under section 33 of the Act to allow his claim to continue (discretion)

Knowledge

Lord Hoffman made it clear that when considering whether the claimant had the requisite knowledge, the courts are to apply an objective test:

"You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment…once you have ascertained what the claimant knew and what he should be treated as having known, the actual claimant drops out of the picture"

Lord Hoffman dismissed the idea that the effect of the abuse on the claimants ability to confront or address his memories should be taken into account under section 14 of the Act, pointing out that this was instead one of the factors the court would consider under section 33.

Discretion

Their Lordships were keen to re-affirm that the courts discretion under section 33 of the Act is an unfettered one. Having said that, Lord Brown went on to provide guidance for the courts to consider. He said that whether or not it will be possible for there to be a fair trial would depend on a number of factors, including when the complaint was first made, with what effect and whether there has been a conviction for the abuse complained of. He also observed that:

By no means everyone who brings a late claim for damages of 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…is in many cases likely to be found quite simply impossible after a long delay.

It is a clear sign that the courts are being reminded to consider the overwhelming prejudice suffered by a defendant who has to face a claim based on abuse alleged to have occurred many years ago. Such claims may be so old they are not capable of reasonable investigation.

Practical consequences

It will take some time for all of these to become apparent and we will do our best to keep you updated when they do. However, allegations of abuse against employees should be simpler for the parties to litigate as there is no longer a need to allege negligence. This in turn should reduce costs.

The interpretation of section 14 of the Act has been clarified and their Lordships have reminded the courts of the overwhelming prejudice a defendant can face when defending stale claims. However, it is likely that we will see a sharp rise in the number of claimants coming forward, especially where a conviction for abuse has been secured.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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