RESPONSE TO THE MINISTRY OF JUSTICE PAPER ON LIMITATION PERIODS AND PERSONAL INJURY – THE IMPACT OF THE PROPOSED REFORMS
FROM THE ASSOCIATION OF CHILD ABUSE LAWYERS
ABOUT THE ASSOCIATION
The Association of Child Abuse Lawyers (ACAL) provides practical support for survivors and professionals working in the field of abuse. Formed over 10 years ago, ACAL maintains a telephone help line and web site presence to sign-post survivors of abuse to lawyers who have the expertise and experience to assist them in obtaining the redress to which they are entitled. ACAL also campaigns in this area, and provides training, access to data bases and an information exchange to members to assist them in their work. ACAL’s membership is made up of solicitors, barristers, psychiatrists and social work experts who are all specialists in this field.
Of relevance to this consultation, two of our executive committee members acted for three of the Claimants in the case of A v Hoare and related appeals [2008] UKHL. The Association welcomed the House of Lords’ ruling in that case, with the overturning of Stubbings v Webb [1993] AC 498 and an effective implementation of the Law Commission’s 2001 proposals for child abuse claims by way of the common law.
HOW WE HAVE APPROACHED OUR RESPONSE
We answer each of your questions below. References to paragraphs in brackets refer back to the MoJ’s paper.
QUESTION 1
We do believe that the implementation of the reforms will broadly replicate the present law. Clearly there should be no 10 year (or any) ‘long stop’ period as originally suggested by the Law Commission in personal injury claims, which proposal it later abandoned in its final report.
QUESTION 2
There will be some improvements – for example that a supervening disability will suspend the limitation period, which is fairer to victims of personal injury and abuse (paragraph 21).
There is however also a downside – we do not understand how extending the delay to be taken into account under section 33 of the Limitation Act to include time before the primary limitation period has expired (paragraph 22) will have a fair impact on cases involving sexual abuse. A distinction must be made here for clients who had been wronged as children and people who had formerly suffered a mental incapacity. Clearly time running before someone has the legal capacity to instruct a lawyer should not be a relevant consideration for a court when considering the merits of exercising its discretion under section 33. Whilst we understand that this is the present law (T v Girls & Boys Welfare Society [2004] EWCA 1747), this causes much injustice in child abuse cases and we would ask that any legislation remedies this problem.
QUESTION 3
We do not believe that the reforms will result in any significant costs or benefits, when compared with the current regime. The reforms broadly codify the current law. Discretion to be exercised under section 33 is case specific and all cases would need to be assessed individually. As a matter for discretion, whilst guidance can be given (as it was in A v Hoare & others), each case will fall to be assessed by the court on its own merits. This goes too for questions of date of knowledge under the Limitation Act – again such questions are fact or case specific.
QUESTION 4
We do not have any such information.
QUESTION 5
We generally welcome the reforms as providing extra guidance to our members and others acting for Claimants, in assisting them to risk assess their client’s cases at the earliest stage. Good risk assessment means that cases without merit are identified and not taken forward, with the effect of saving costs and court time generally.
Association of Child Abuse Lawyers
8TH September 2009
For further enquiries please contact
Jonathan Wheeler
ACAL Treasurer
Bolt Burdon Kemp
Providence House
Providence Place
Islington
London N1 0NT
T 020 7288 4837
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