Abuse partner Alastair Gillespie shares some further thoughts in this and a subsequent blog on IICSA’s recent limitation recommendations and the likelihood that they might come into force 

It came as no surprise that in its final report IICSA recommended revision of the current limitation legislation in England and Wales. Analogous developments in Canada, Australia and Scotland illustrate an increasingly global trend. As recently as 16 September, President Biden signed a bill that will eliminate the statute of limitations for people across the USA who were sexually abused as minors and may now file civil claims. Previously they could do so only in a federal court before their 28th birthday or, if earlier, 10 years after the assault.

The rationale

As we know, the Inquiry has concluded that legislative reform is needed. Limitation is a barrier to victims and survivors. If that barrier is removed then unless 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. According to government research the average time to disclose sexual abuse is 26 years. Having to justify that delay adds a further and unnecessary burden to what is already a difficult process. The Inquiry considers that the current Limitation Act was not designed with victims of child abuse in mind (which is probably true but does not automatically mean that it requires amendment).

The Inquiry did consider other factors weighing against legislative change, such as the risks of lengthy and expensive satellite litigation (of which more in the next blog) and the problems faced by institutions that did not have any or any adequate insurance cover, but those perceived negatives were outweighed by the case for reform.

It was obviously very persuasive that other jurisdictions have reformed limitation relating to child sexual abuse claims (and other forms of childhood abuse) including Scotland, although it might be regarded as ironic that one justification for reforming the law in Scotland was to bring it more into line with the perceived position in England & Wales, because the slightly different limitation provisions that had been in force in Scotland had been applied rigidly against claimants.

What difference would these provisions make?

I remain of the view that the main intended consequence of the proposed reform, the shifting from claimant to defendant of the burden of proving that a fair trial is possible, will make little or no practical terms to the way in which limitation is currently engaged in the resolution of these claims. Limitation is fundamentally a test of equity, and it will continue to be a test of equity -  is it fair, just and reasonable to allow claims to proceed many years after the events in question notwithstanding the evidential issues that have arisen during the period of delay? True, the claimant no longer has to explain reasons for their delay. However, even now the extent to which a limitation defence is founded on the reasons for a claimant’s delay is usually very limited, especially when the effects of the abuse can legitimately be said to have contributed to the delay. In the vast majority of cases the reasons for the delay are a footnote to the principal limitation arguments, which are about the available, and the unavailable, evidence. The focus is on the damage to the evidence during that delay. That focus will continue.

In Part 2 of this blog consideration will be made of problems and challenges and whether the recommendation will be implemented.