The Crime and Policing Bill, a flagship part of the new government’s Safer Streets agenda, completed its passage through the Commons and had its First Reading in the House of Lords on 19 June. The Bill includes wide-ranging reforms on knife crime, retail violence, anti-social behaviour and child protection.
Among the amendments added during the Commons stages is a new clause which will remove the 3-year limitation period for personal injury claims arising from child sexual abuse and reverses the burden of proof for the defendant to show that a fair hearing would not be possible and that it would be “substantially prejudiced” if the action did proceed. This is to implement a key recommendation made by the Independent Inquiry into Child Sexual Abuse and follows similar reforms which were introduced in Scotland in 2017.
However, the English drafting raises some potential legal and practical uncertainties about how such claims might be considered by the courts in the future.
- Section 33 factors in the Limitation Act 1980 will no longer apply;
- The claim must be dismissed if the defendant shows “it is not possible for a fair hearing to take place”;
- The claim must also be dismissed if the defendant shows there would be “substantial prejudice” to the defendant if the claim proceeded and having regard to the defendant’s prejudice, and the prejudice to the claimant if the action is dismissed, that it would “not be equitable to allow the action to proceed”.
The government and IICSA were very clear that reforms should be limited to child sexual abuse claims as the case for reform had been comprehensively explored by the Inquiry in this specific group of cases. Accordingly, as the current drafting applies to sexual abuse only, it is unclear how this wording might treat claims where other types of abuse are being alleged at the same time, such as physical and emotional abuse (which is not an issue in Scotland as the scope is much wider, to include claims pursued for physical abuse, emotional abuse and neglect).
It is therefore possible that in such cases the new limitation provisions would apply to those allegations that relate to sexual abuse but other abuse types will remain subject to the current limitation regime within the same action (a 3-year limitation period; burden upon the claimant; and the application of section 33 factors), with parallel limitation provisions applying to the same claim.
Paragraph 7 of section 11ZA disapplies the reform where claims have been “settled by agreement between the parties or determined by a court”. However, no definition is provided as to what is meant by claims that had been “settled by agreement between the parties” and whether this will apply to pre-litigation or claims that had been discontinued or settled other than by way of formal agreement between the parties. This therefore creates some uncertainty over re-litigation of past cases and arguments where a claim had in fact been settled by agreement or not.
It will therefore remain to be seen whether any amendments are made to define what is meant by “settled by agreement between the parties” and whether it will only apply to all claims where a claim has been concluded either by formal agreement or consideration between the parties (e.g. discontinued with no order as to costs) or whether it will also include unilateral discontinuances.
Under the new section 11ZB, the proposed “fair hearing” and “substantial prejudice” provisions replicate the approach taken in Scotland, which has already resulted in several judicial interpretations favourable to claimants in that jurisdiction. Part of the explanation for this is that prior to the introduction of the Scottish 2017 legislation it was a jurisdiction in which very few claimants, if any, were able to pursue claims for abuse because of the statutory limitation period. Accordingly, judicial interpretations of the 2017 Act appear to recognise that past restriction to allow more claimants to pursue claims for abuse.
However, the position in England & Wales is very different. This jurisdiction has already had the benefit of established and authoritative judicial guidance on fair trial/prejudice issues (e.g. A v Hoare in the House of Lords in 2008 on fair trial factors), which has resulted in several successful claims being pursued for abuse, despite being statute-barred.
The new provisions therefore potentially raise some uncertainty as to whether such judicial guidance will be rendered redundant based on the new wording and whether the Scottish interpretation will now apply. For example, there is no concept of “substantial prejudice” in England & Wales and instead the judicial guidance on prejudice has been framed in other words, namely whether a defendant will be “exposed to the real possibility of significant prejudice”.
It also raises an additional question as to whether having “fair hearing” as a standalone defence potentially increases the prospect of defendants having to revive the approach for applications for limitation to be tried as a preliminary issue.
It follows that lengthy test litigation on the interpretation and application of this new wording as drafted will be almost inevitable. In order to avoid such test litigation, one approach would be to rephrase the wording to use existing England & Wales guidance provided by the courts, so the statutory wording seeks to better reflect the common law position, that court must dismiss the action if the defendant satisfies the court that in defending the action it will be exposed to the real possibility of significant prejudice and having regard to all the circumstances of the case it would not be equitable to allow the action to proceed.
While the intent to remove the 3-year limitation period and reverse the burden of proof in child sexual abuse cases is widely supported, there is some potential ambiguity in the drafting of the legislation that could create legal uncertainty with a real risk of lengthy satellite litigation on the issues identified above, which will have an impact on both claimants and defendants as well as the courts.
The Crime and Policing Bill is vast and is yet to be given a date for a second reading in the House of Lords. It will therefore be necessary to closely monitor the progression of the bill and any amendments that might be made, given the potential impact on how such claims are to be dealt with in the future.
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