Independent Inquiry into Child Sexual Abuse and civil claims: is time up for the Limitation Act?

The Independent Inquiry into Child Sexual Abuse (IICSA) examined evidence that the application of limitation in civil child sexual abuse (CSA) claims operates unfairly. It concluded that it has a prejudicial effect on the willingness of lawyers to accept claims, valuation and settlement of claims, and trial. The IICSA recommended its removal in CSA cases, with the burden then falling on the defendant to persuade the court that, in the absence of a limitation defence, that a fair hearing was not possible.

CSA claimants have already experienced heinous cruelty, yet the law on limitation throws down further harsh barriers in their search for reparations, and risks further trauma. The unfairness is even more stark as the abuse itself creates barriers to disclosure, such as feelings of shame, which in turn cause or contribute to delay. Seemingly, defendants can therefore benefit from the consequences of their own alleged wrongdoing, or the wrongdoing of those they are vicariously responsible for, to successfully stave off any claim, or settle at an undervalue.

The background

In CSA cases, limitation runs from the claimant’s eighteenth birthday. A claim brought three years after that date is time barred. The majority of civil CSA claims are brought after expiry of that primary limitation period.

The Limitation Act 1980 allows a claimant to request that the court disapply the three-year limitation period if the defendant argues the claim is time barred, which they invariably do. This predictable defence places a heavy burden (and cost) on the claimant, requiring them to satisfy stringent criteria and face the menace of a defence that could extinguish their claim, regardless of any merit in the remaining issues.

The government’s stance

However, the IICSA’s recommendation was not accepted by the government. In its response, the government proposed a consultation on options for limitation reform. That consultation opened in May 2024 and invited responses from several stakeholders who would be most affected by the nine options presented. One option is to maintain the status quo, however, the government has accepted the exceptional nature of CSA claims, that such claims may be brought many years, even decades, after the abuse and the critical limitation issue that the reform recommendation by the IICSA intended to address in reducing some of the barriers faced by CSA victims and survivors in seeking redress (Consultation Impact Assessment: Evidence Base).

In the foreword to the consultation, the government promised to ‘consider all responses carefully’. However, despite the range of identified stakeholders being wide enough to reflect a fair and independent balance of consultees, there appears little hope that the result of the consultation will lead to the removal of limitation in CSA cases. The opening position of the government is that it does not support removal of the limitation period, stating that the current three-year period is not absolute, there is a need for certainty for defendants who could face litigation at some indeterminate time in the future, and that it would not be in the interests of justice given the potential effect on the cogency of evidence.

Instead, the government favours a reverse burden of proof, meaning that claims will proceed unless the defendant persuades the court that a fair hearing is not possible or they would be substantially prejudiced, along with codification of existing judicial guidance. A reverse burden may be a positive step forward, but it is unlikely to spare the claimant having to, among other things, explain in detail the personal reasons for the delay, describe the insidious effects of the abuse, and respond to arguments about the degradation of evidence. If this option is implemented, it is questionable whether this will achieve anything close to the IICSA’s recommendation; it will simply involve the same arguments, with a different side firing first.

In dismissing support for removal of the limitation period, the government has cited evidence from the IICSA, that other categories of claimants may find themselves just as deserving of limitation reform. It is untenable to suggest that unfairness to one group should mean unfairness to all. Perhaps the time has come to reform the whole of limitation, not just in CSA claims.