It comes as no surprise that in its final report IICSA has recommended changes to the current limitation legislation. Should the Limitation Act be amended in the way that IICSA has recommended, then England and Wales would be adopting some, but not all, of the changes that we have seen to the Scottish limitation regime.

The specific recommended changes are:

• Removal of the 3-year time bar for abuse claims.
• The right to a fair trial is protected and the burden falls on the defendant to show that a fair trial is not possible.
• The new provisions would apply whether the 3-year period has started to run or, more likely, has expired: EXCEPT if a case has been dismissed by a court or settled by agreement.
• Claims CANNOT be brought by the estates of victims or survivors under these revised provisions.

The rationale

The Inquiry has assessed that limitation is a barrier to victims and survivors. If that barrier is removed then, save in the exceptional circumstances where a fair trial is impossible, the benefits of this change in the law greatly outweigh the negatives mainly because the abuse is often the reason for the delay in coming forward.

The immediate questions and concerns

• These proposed changes are to apply to ‘abuse’ claims. The term ‘abuse’ is not defined. Are these revisions intended to apply to cases other than sexual abuse now and/or in the future? In Scotland, for example, the definition of abuse has been widened to include physical abuse, emotional abuse and neglect (Limitation (Childhood Abuse) Scotland Act 2017, section 17A(2)). Is that the intention here?
• The Inquiry does say that it has considered negatives such as the risks of lengthy and expensive satellite litigation, potential increase in premiums and claims volumes, problems for State and non-State institutions that are not, or not adequately, insured, and the effect on the ability of institutions to obtain insurance in the future. There is some doubt as to whether that balancing act has been based on sufficient evidence, particularly any empirical data or other information.
• In balancing respective interests, IICSA relies upon incomplete, vague and speculative evidence from claimant lawyers which is concerning. Many claimant lawyers who gave evidence could do no more than guess how many potential claims they had turned down on limitation grounds. There was no specific data. There was no allowance for factors such as multiple enquiries of different firms by the same individual(s).
• If the law changes, is there a risk of yet further satellite litigation, for example to determine whether cases do or do not satisfy the definition of ‘abuse’, however that might be defined in the statute?
• As presently recommended, the available defences to a claim would be narrower than in Scotland, where the defender can also argue that it has suffered prejudice that is so significant that it outweighs the prejudice to the pursuer and thus the claim should not be allowed to proceed.
• On our initial reading of the recommendation, anyone who has previously brought a claim which did not proceed to litigation, and was withdrawn as opposed to being paid, can resurrect that claim under this new limitation regime. This retrospective impact would create issues not only in relation to claim volumes but also real challenges for everyone involved in the previous attempt to make a claim in relation to the preservation and retention of documents such as old paper files or virtual files locked in obsolete computer systems. The potential for yet further satellite litigation is clear.

The caveat

These recommendations are simply proposals for change. For them to be effective, the black letter law of the Limitation Act will need to be amended or repealed in part. Only the will of Parliament can make that happen. Readers who have followed the attitude of the government to IICSA over the last few years will know that there would have been no prospect of effecting legislative change had Mr Johnson remained as Prime Minister. The attitude of subsequent governments may be different, but in light of current events it is going to take some considerable time for these recommendations to reach the top of the in tray.

Over the next few days we will continue to assess the potential ramifications of these proposals.