The Limitation Act 1980 (‘the Act’) consolidated the evolution of limitation law between 1939 and 1980, a period of 41 years. It is now 44 years since the Act came into force. Following a recent recommendation from the Independent Inquiry into Child Sexual Abuse (IICSA) that the limitation period should be removed in civil child sexual abuse (CSA) cases, is an overhaul of all limitation law overdue?
Society has changed significantly since inception of the Act. The law must follow suit and evolve with societal change. Knowledge and understanding of historical CSA, in particular, has developed considerably not only in respect of the existence of abuse, but also in the insidious effects of CSA, as well as in the resulting personal, psychological and organisational barriers to disclosure that victims and survivors of CSA are faced with.
IICSA’s recommendation to remove limitation was informed by evidence that limitation law operated unfairly on such claimants. CSA claimants have three years from their eighteenth birthday to bring a claim. There is no certainty when a claimant will bring their claim, but it is usually many years after expiry of this period. Whilst effectively then out of time, the Act allows a claimant to seek the court’s discretion to proceed with a claim. This is not an easy task. While the Act does provide some guidance on factors the court should consider, the court will consider all relevant circumstances in the exercise of this unfettered discretion. Fairness would dictate that, when the reasons for the delay arise from the CSA itself, the law must allow the claim to be heard, but that is not always the case.
Accordingly, whilst there are already numerous emotional and legal barriers to bringing a civil CSA claim, which understandably justify claims being brought many years later, the operation of limitation presents an unnecessary hurdle between a claimant’s suffering and their right to a legal remedy.
Limitation is also a grave litigation risk. Often invoked by a defendant, the burden of persuading the court to exercise its discretion falls on the claimant. If unsuccessful, the entire claim is lost. As IICSA reported, therefore, limitation can impact the ability to find legal representation, the monetary value of a claim and any final trial.
In response to IICSA’s recommendation, the Government opened a consultation in May 2024, presenting options for limitation reform. Responses are requested from those affected. While removal of the limitation period in CSA claims is considered, the Government has made it clear this option is not preferred. Instead, the Government promote a reversal of the burden of proof. This would mean that defendants have the burden of persuading a court that a fair hearing was not possible, otherwise the claim could proceed.
With this opening position, perhaps the Government has given us an insight into the outcome. A reverse burden would fail to address the unfairness faced by civil CSA claimants. They would still need to stave off arguments about inevitably aged and incomplete quality of evidence and reasons for delay. Precisely the position now.
The recommendation of IICSA to remove limitation in CSA claims was carefully considered and based upon scrutiny of vast evidence concerning the civil justice system. The recommendation is robust, would address the unfairness that IICSA recognised, and must be implemented by the Government.
However, while the unfairness of limitation in CSA claims has been highlighted by IICSA, it is perhaps also time to examine whether limitation operates unfairly in other claims. Limitation reform in CSA cases may be the beginning of a limitation overhaul generally for all categories of claim. Time will tell.
