Limitation period in sexual abuse case

Transcription

1 Limitation period in sexual abuse case Standard Note: SN/HA/4209 Last updated: 10 April 2013 Author: Alexander Horne and Catherine Fairbairn Section Home Affairs Section The limitation period is the time within which one person may bring a civil action against another. The current rules on limitation periods in civil proceedings are complex. Different periods apply to different causes of action. Until recently, as a consequence of a House of Lords decision in a 1993 case, the law distinguished between intentionally caused injury, for which the limitation period was considered to be six years, and negligently caused injury, for which the limitation period is an extendable period of three years. People who were victims of abuse when they were children, but who did not bring proceedings against their alleged abusers until they were much older, could find that the rules resulted in their claims being time-barred. This situation was criticised by many. However, in a landmark ruling in January 2008, the House of Lords held that its own earlier decision was wrong and that the limitation period for intentionally caused injury (including sexual abuse cases) should also be an extendable period of three years. The Law Commission had already recommended that the current rules on limitation periods be replaced with a single core regime which would apply to most civil actions. In personal injury claims, there would be an extendable limitation period of three years, whether the claim concerned was made in negligence or in respect of an intentionally caused injury. In July 2002, the Government announced its acceptance, in principle, of the Law Commission's recommendations, subject to further consideration of several issues, and stated that it would legislate when a suitable opportunity arose. In January 2007, the Government announced that it would consult on the detailed content of a draft Bill to implement the Law Commission's recommendations. In February 2008, the Government confirmed that the proposed consultation would take account of the recent House of Lords judgment. However, in November 2009, the Government announced that reform of the law of limitation of actions would not be taken forward. This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.

2 Contents 1 Limitation periods General Personal injury actions, including sexual assault claims Recent House of Lords decision 4 2 Law Commission recommendations 5 3 Government response 7 4 Recent developments 7 2

3 1 Limitation periods 1.1 General The limitation period is the time within which one person may bring a civil action against another. The current rules on limitation periods in civil proceedings are complex. Different periods apply to different causes of action. Any constituent who is considering making a legal claim should take specific legal advice to determine the relevant time limit. The Limitation Act 1980, applies to civil claims. 1 Part I of the Act sets out the ordinary periods of limitation applicable to different types of civil actions. In effect, a person with a civil claim will lose it if he or she does not sue within a specified period of time. The general rule is that the limitation period for an action in tort 2 is six years from the date on which the cause of action accrues Personal injury actions, including sexual assault claims The limitation period for personal injury actions is set out in section 11. Sub-section (1) provides that: This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. In cases covered by section 11, the limitation period is three years from the date on which the cause of action accrues, or, if later, three years from the date of knowledge of the person injured, or the date of majority, but the court can extend time if it is just and equitable to do so. Section 14 sets out the definition of date of knowledge. Section 33 of the Limitation Act 1980 gives the court discretion to allow a civil action within the scope of section 11 to be brought, even if the limitation period has expired. The court must have regard to all the circumstances of the case and must take into account a list of factors laid down in section 33(3), including the length of delay in commencing proceedings and the reasons for that delay. Having identified the reasons, the court must then consider whether or not there is an equitable (ie just) reason to justify not applying the normal limitation period to the case. Until recently, as a result of a House of Lords decision in a 1993 case, Stubbings v Webb, section 11 was interpreted by the courts as applying to negligently caused personal injury, but not to deliberately caused personal injury, including sexual assault. 4 The limitation period for deliberately caused personal injury was considered to be six years from the date of the injury, or the date of majority (ie by the age of 24, time generally ran out for someone who suffered sexual abuse while a child). 5 As a consequence, people who were victims of abuse when they were children, but who did not bring proceedings against their alleged abusers As amended by the Latent Damage Act 1986, which inserted new sections 14A, 14B, 28A in the Limitation Act 1980, amending the law about limitation of actions in relation to actions for damages for negligence not involving personal injuries A tort is a civil wrong Limitation Act 1980 section 2 [1993] AC 498 Limitation Act 1980 section 2 3

4 until they were much older, could find that the rules resulted in their claims being time-barred. This situation was criticised by many. 6 In one case, the claimant had been sexually abused by her father but did not commence legal proceedings until nearly 10 years after the last act of abuse. The cause of action against the father was intentional assault and accordingly the claim was held to be time-barred. However, the claimant also brought proceedings against her mother based on her negligent failure to protect her against the father. This fell under section 11 of the Limitation Act 1980 and so was subject to the court s discretion to extend the limitation period under section 33, which the judge granted and the Court of Appeal affirmed. The action against the mother was therefore allowed to proceed. 7 Sir Ralph Gibson, one of the judges hearing the case in the Court of Appeal, commented that the result was illogical and surprising. 1.3 Recent House of Lords decision On 30 January 2008, the House of Lords (which was the predecessor to the current Supreme Court) delivered its ruling on the limitation period for sexual abuse claims in five appeal cases (including A v. Hoare, the so called "Lotto Rapist" case). 8 In each case, earlier hearings before lower courts had held that, in accordance with Stubbings v Webb, the claim failed because it had been brought out of time. However, the House of Lords held that Stubbings v Webb had been wrongly decided, that actions for personal injury deriving from intentional trespass to the person fell within section 11 of the 1980 Act (with an extendable three year limit) and that therefore courts had discretion under section 33 of the Act to extend the time limit in the claimants' favour. This means that, depending on the circumstances, a claim for damages for personal injuries caused by a sexual assault now generally has a limitation period of three years from the date when the victim first considers the injury sufficiently serious to justify proceedings, but judges have discretion to extend that period if thought equitable. The House of Lords also considered the date of knowledge provision in section 14 and held that the test was whether a reasonable person with the claimant s knowledge would have considered the injury sufficiently serious to start legal proceedings. If the claimant had any personal characteristics which might prevent him from acting as a reasonable person would, these could be taken into account by the judge when deciding whether to exercise discretion to extend the limitation period. Lord Brown of Eaton-under-Heywood acknowledged that the effect of the decision might be to encourage more claims many years after the alleged incident had taken place but he said that not all of these would be allowed to proceed: a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been See, for example, Limitation: A Lewis Carol Story by Peter Garsden, Vice-President of the Association of Child Abuse Lawyers (at 10 April 2013) S v W (Child Abuse: Damages) [1995] 1 FLR 862 A v Iorworth Hoare; C v Middlesbrough Council; X & Anor v Wandsworth LBC; H v Suffolk County Council; Young v Catholic Care (Diocese of Leeds) [2008] UKHL 6 4

5 accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for 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 (which must surely include a fair opportunity for the defendant to investigate the allegations see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay. 9 Baroness Hale of Richmond considered that a fair trial could be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case Law Commission recommendations Reform of the law relating to limitation periods has been under consideration for some time, quite separately from the specific appeal cases recently heard by the House of Lords. In July 2001, the Law Commission published a report in which it recommended that the current rules on limitation periods be replaced with a single core regime which would apply to most civil actions. 11 They proposed that a three-year extendable time limit should apply to all personal injury claims. The Law Commission s report included a discussion of the particular problems which arise in relation to claims by victims of child sexual abuse and how these might be addressed under the new core regime : 6. CLAIMS BY VICTIMS OF CHILD SEXUAL ABUSE (1) Should any limitation period apply? 4.23 Claims by victims of child sexual abuse pose particular problems for any limitations regime. The acts giving rise to the cause of action will, by their nature, occur when the claimant is a child. Depending on the nature of the abuse, the claimant may suffer immediate physical injury. However the abuse may also cause extensive and prolonged, psychiatric problems. This later injury may only manifest itself - or at least be recognised as such by the victim - several years after the abuse. This creates problems similar to those of latent disease. ( ) 4.25 We considered in the Consultation Paper whether sexual abuse claims are so unique that they should not be subject to any limitation period. We concluded that they were not. It can be argued forcibly that in the case of sexual abuse (at least where the defendant has been tried and convicted for a criminal offence in respect of the abuse) there may be no justification for protecting the interests of the defendant (an important function of a limitation regime). However, it may not have been established that the defendant committed the assault, and the principle that litigation should be stifled at some point (irrespective of the merits of the case) to prevent claims being brought at a time when it is no longer possible to give a fair trial to the dispute, remains valid. We provisionally proposed, therefore, that such claims should continue to be subject to a limitation period. This was supported by around ninety per cent of consultees Paragraph 86 Paragraph 60 Limitation of Actions Law Com No

6 answering this question and we now therefore confirm as a final recommendation that claims in sexual abuse cases should be subject to at least the primary limitation period Three consultees pointed out, in addition to the arguments we put forward in the Consultation Paper in support of our provisional proposal, that it is difficult to justify giving special treatment to sexual abuse claims alone, without according similar protection to, for example, non-sexual assaults against children. Sexual abuse may, in the current climate, be regarded as uniquely unacceptable but other non-sexual abuse of children may be as damaging. Yet it would be difficult to argue that all attacks against children should be exempted from the limitation regime However, two consultees argued that no limitation period should apply to sexual abuse claims because, among other reasons, sexual abuse victims commonly suffer from dissociation making them unable to bring claims against their abusers. The term dissociation is used in two senses. Lee Moore refers to dissociative amnesia, which is a diagnostic category of the Diagnostic and Statistical Manual of Mental Disorders, describing an inability to recall personal information of a stressful and traumatic nature - such as sexual abuse suffered. Pannone & Partners use the term in a more general sense, to describe the position where the plaintiff is aware of both the trauma and of its consequences for his psychological make-up but the trauma was so awful that memories or reminders of it would be too psychologically damaging for the plaintiff, and thus, the plaintiff dissociates himself or herself from these memory triggers, for example litigation Where dissociative amnesia (or a similar mental condition) is responsible for the claimant s inability to bring a claim within the limitation period, the claimant will be afforded some protection by our recommendations in respect of lack of capacity. Dissociative amnesia would appear to fall within the terms of mental disability as we have defined it above. Where therefore the claimant can show that this was the cause of his or her inability to bring proceedings, the primary limitation period would be suspended for at least ten years from the onset of the disability. This would also apply where the claimant suffered from another recognised mental disorder. We have rejected the suggestion that disability should be defined to include any separate provision for the psychological incapacity suffered by victims of sexual abuse because of the difficulty of defining this incapacity. However, the definition of disability is sufficiently wide to ensure that where a claimant is psychologically incapable of commencing proceedings, and this incapacity can be identified as a mental disability, that claimant will be given the same protection as any other claimant under a disability. ( ) 4.31 We do have some concerns that claims may be brought many years after the events on which the claimant s cause of action is based, at a time when it is difficult for a fair trial to be given to the claimant s allegations. However, subject to the provision on disability, the victim is likely to have immediate knowledge of the relevant facts, so that the primary limitation period expires three years after majority. Although the court will have a discretion to disapply the primary limitation period, it must consider whether the defendant s ability to defend the claim will be prejudiced due to the lapse of time since the events giving rise to the cause of action. And our concerns are no greater in respect of sexual abuse claims than personal injury cases generally. In other words, these concerns are not a good reason for making a separate modification in respect of sexual abuse claims, but a factor to be considered in deciding whether or not there should be a long-stop for personal injury claims. 6

7 4.32 We recommend that claims by child abuse victims should be subject to the core regime as modified in relation to other personal injury claims Government response In a written answer on 16 July 2002, Lord Irvine of Lairg, who was then Lord Chancellor, gave the Government s response to the Law Commission s report: The Government accept in principle the Law Commission's recommendations on limitation of actions, subject to further consideration of certain aspects of its report, and will legislate when a suitable opportunity arises. 13 On 9 January 2007, Baroness Ashton of Upholland who was then Parliamentary Under- Secretary of State at the Department for Constitutional Affairs (as it was then, now Ministry of Justice), made a written ministerial statement in which she confirmed the Government s intention to consult on the detailed content of a draft Bill to implement the Law Commission's recommendations: In July 2002 my noble and learned friend the Lord Chancellor announced his acceptance in principle of the recommendations in the Law Commission's 2001 report Limitation of Actions (Law Com 270) subject to further consideration of certain aspects (Hansard, 16 July 2002, WA 127). As part of the ongoing preparation of these reforms my department will consult in spring 2007 on the detailed content of a draft Bill to implement the Law Commission's recommendations. This consultation will include consideration of the issue of giving the court powers to allow it to hear certain cases beyond current limitation periods, allowing the victim to sue if the offender later receives a windfall, for example. The Government undertook to consult on this in the July 2006 publication, Rebalancing the Criminal Justice System in favour of the lawabiding majority. 14 In a written answer in February 2008, Bridget Prentice, who was then Parliamentary Under Secretary of State at the Ministry of Justice, confirmed that the proposed consultation, for which no date had been set, would take account of the recent House of Lords judgment. 15 However, in November 2009, Bridget Prentice announced that the proposed draft Civil Law Reform Bill would not now include provisions to reform the law of limitation of actions: These provisions were based on a Law Commission report of But a recent consultation with key stakeholders has demonstrated that there are insufficient benefits and potentially large-scale costs associated with the reform. In addition, the courts have remedied some of the most significant difficulties with the law that the Law Commission identified, for example, in relation to the limitation aspects of child abuse cases. The limitation reforms will therefore not now be taken forward Recent developments In response to a Parliamentary Question about what the Government is doing to ensure that victims of child abuse have access to sufficient support, the Minister, Helen Grant, indicated that: Limitation of Actions Law Com No. 270, (footnotes removed) HL Deb 16 July 2002 c127wa HL Deb 9 January 2007 c8ws HC Deb 6 February 2008 c1190w HC Deb 19 November 2009 c13ws 7

8 The Government is committed to developing a justice system that provides the highest possible standards of protection and support for young victims of crime. Responsibility for the care and support of child victims of rape, sexual assault and sexual exploitation is led by the Department for Education. The Ministry of Justice is working closely with the Department of Education to deliver their Tackling Child Sexual Exploitation Action Plan which was published in Children are one of a number of vulnerable victims for whom services will be prioritised following the response to last year's Ministry of Justice public consultation Getting it Right for Victims and Witnesses. The Ministry of Justice is also providing nearly 4 million of funding this year through its Rape Support Fund for support and counselling services for women and girls over the age of 13 years who have suffered recent or historic rape or sexual violence. The Government has opted into EU Directive 2011/92/EU of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography. The directive, which is due to come into force on 18 December 2013, will help to ensure that there is a co-ordinated and consistent response throughout the European Union in combating child sexual exploitation, which as a result of advances in technology, increasingly goes beyond the limits of national borders. 17 There have been a number of recent articles on the issue, particularly following allegations of sexual abuse against former broadcaster Jimmy Savile. 18 The case of Savile was complicated by the fact that he had not been convicted of a criminal offence at the time of his death and that it was thought that many of his assets had been donated to charity. One commentator, writing in the Solicitors Journal, observed that: Normally in a case involving the conviction of an abuser, the court will exercise its discretion under section 33 of the Limitation Act 1980 to disapply limitation. However it is not certain how a court might react to a number of separate claims, brought against a deceased tortfeasor where there may be nothing more in the way of evidence than the victim s statement and videotapes of Savile s shows HC Deb 7 Mar 2013 c1135w 18 See: e.g. BBC Online, Jimmy Savile scandal: What legal redress for abuse victims?, 11 January 2013; F. Gerry, Jimmy Savile, (2012) Criminal Law and Justice Weekly 176(42), 609; Vicarious Liability extended, (2012) New Law Journal 162(7540), 1480; and, M. Johnson, Jimmy Savile s victims still have serious obstacles to overcome, (2012) Solicitors Journal 156(41), See: M. Johnson, Jimmy Savile s victims still have serious obstacles to overcome, (2012) Solicitors Journal 156(41), 9. 8