In most injury claims, there is a three year time period from the date of the accident to when proceedings must be issued at court (or in the case of a child, three years from their 18th birthday). This is called the “primary limitation period”. If a claimant brings their case even a day later than the three year time period, then they risk their entire claim failing for that reason alone.
Sometimes judgments appear very harsh in not allowing a claimant to bring their good claim, simply because they are out of time – even though their case would otherwise have been likely to succeed.
This is especially problematic for claims of historic sexual abuse, which may have occurred decades ago when the claimant was a child but the psychological effects of which often make it difficult or impossible for the claimant to speak up about what happened.
Despite this problem, there are two avenues down which a claimant might bring a claim that is outside primary limitation.
Firstly, a claimant might argue that they did not have the required knowledge for the time limit to start running. The knowledge required for the time limit to start running is set out in the Limitation Act 1980 as when the claimant has knowledge that the injury at least in part attributable to an act or omission by the defendant which is now alleged to constitute negligence, nuisance or breach of duty (amongst other things).
Secondly, the court also has the power to allow claims to continue even outside of the time limit – but they are not compelled to do so. This power is also granted to the court by the Limitation Act 1980, which gives the court power to allow a claim to proceed if it would be just in all the circumstances.
A recent judgment is useful for giving an idea of how the court approaches both these issues which I will explore below: A v Watchtower Bible and Tract Society and others.
Facts of the case
In A v Watchtower Bible and Tract Society the claimant was a 29 year old woman bringing a claim for abuse suffered weekly at the hands of a Jehovah’s Witness ministerial servant between the years from 1989 to 1994 when the claimant was between the ages of 4 and 9. It was accepted by the defendants that the abuse had occurred.
The claimant found out about the abuser’s imminent release from prison and it affected her badly. In May 2000 the claimant’s mother wrote to the abuser who replied admitting the abuse and apologising and the mother reported this to the police. The abuser died before the police could interview him.
It was not until 2002 that the claimant learned that the abuser had been accused of sexually abusing another girl. In 2006 the claimant met with an elder from the Church who denied that they would ever have overlooked something like this. The claimant remained angry and continued believe the elders had known about what happened but she had nothing to back this up and felt there was no way of finding out the truth.
The primary limitation period expired in September 2006 three years after the claimant turned 18. The proceedings were not issued at court until March 2013 and so were around 6½ years outside the primary limitation period.
The claimant argued firstly that Jehovah’s Witness organisation were vicariously liable for the abuse (the “assault” claim). Secondly, the claimant also alleged that that the church had negligently failed to take steps to protect the claimant from the abuser even after they knew that he had sexually assaulted another child in the congregation (the “safeguarding” claim).
The claimant accepted that she was out of time for the assault claim and asked for the court to act on its discretion to allow her claim to proceed.
With regards to the safeguarding claim, the Claimant contended that she did not have the requisite knowledge about the safeguarding claim until she read saw the defendants’ witness statements in March 2013 and argued that the limitation period should run from that date.
Date of knowledge
The time allowed under the Limitation Act starts running from the time that a claimant knows an injury is attributable in whole or part to a defendant’s act. The defendants therefore argued that the claimant had knowledge that the injury was at least part attributable to the defendants’ act and so the time limit would have started in 2006.
The claimant argued that she had nothing to go on except her own “belief” which was unsubstantiated and no more than a suspicion that the elders had known of an allegation of sexual abuse – rather than a suspicion that the elders had known of actual sexual abuse by the abuser, which she found out from their witness statements in March 2013.
The court found in her favour agreeing that before the proceedings had begun she had only had a suspicion that the defendants had failed to act on allegations of sexual abuse rather than knowledge that the defendants had failed to act on knowledge that sexual abuse had actually occurred.
The safeguarding claim was therefore allowed to proceed.
The Court’s discretion
The judge then considered whether he should exercise his discretion to allow the assault claim to proceed outside of the time limit. The main question was whether the delay since the expiration of limitation in September 2006 had affected the evidence available.
He also noted that the medical experts had established that the claimant’s post-traumatic stress disorder justifiably explains why she was unable to focus upon the prospect of commencing proceedings until 2013.
The judge found that even if the proceedings had been legitimately commenced within the limitation period back in 2006 the claim would have been one of historic sex abuse case and had very similar issues of evidence. No key witnesses had died during that 6½ years period. The Defence had not identified any documents that have not been recovered as a result of the delay from 2006 to 2013.
As a result, the judge did not find that there was any prejudice to the defendants arising from the expiry of the limitation period or and considered that a fair trial would be possible and that the claim could continue.
Any prospective claimant must have a legal team who with expertise in the area of limitation. Fine distinctions made over what a claimant knew and when can make or break the claimant’s case.