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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
For more information or advice, please
contact Sarah or David.
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