The combined effect of the decisions of the House of Lords in Lister v Hesley Hall Ltd and A v Hoare [2008] UKHL 6 has been to open the court doors to vast numbers of historic childhood abuse compensations claims. In Lister v Hesley Hall Ltd the court held that an employer could be vicariously liable for sexual abuse; in A v Hoare the court overruled Stubbings v Webb [1993] AC 498, holding that the limitation period in claims for deliberate assault was governed by section 11 of the Limitation Act 1980 rather than section 2. Whilst the decision in Hoare had the effect of reducing the primary limitation period to 3 years, it also had the more important effect of bringing claims for deliberate assaults within the reach of section 33 of the Act, allowing for discretionary extensions of time; it thus swept away the need for claimants to prove negligence on the part of employers in relation to sexual abuse by their employees in order to benefit from the more generous limitation regime.

In Hoare, the House of Lords effectively killed arguments that a date of knowledge extension under section 14 could apply in sexual abuse cases, holding that the test of knowledge was an objective one and a reasonable person who had suffered sexual abuse would, in most circumstances, know that they had suffered injury at the time. However, the court confirmed a liberalisation of section 33, emphasising that the discretion was an unfettered one and could take into account matters such as a claimant’s embarrassment or reticence about making complaints of sexual abuse. Lord Brown, with the approval of the other members of the House, made the following comments about the section 33 discretion:

“85 First, in so far as future claims may be expected to be brought against employers […] on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at para 52, that is likely to bear significantly upon the possibility of having a fair trial.

86 Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb , a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial […] is in many cases likely to be found quite simply impossible after a long delay.

87 Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffmann at para 36). It is not to be supposed that the exercise of the court's section 33 discretion will invariably replicate that position.”

In B v Nugent Care Society [2009] EWCA 827, that Court of Appeal expressed the view that the effect of the decision in Hoare was, in general, likely to make it easier for claimants to persuade the court to exercise a section 33 discretion. In Cain v Francis [2008] EWCA Civ 1451 (not a sexual abuse case) Smith LJ formulated the basic question to be addressed under section 33 as being, “whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not such much for itself as for the effect it has had”.

How has this played out in practice? Two general trends can be discerned. First, in cases which still require proof of negligence, claimants can still face significant problems in obtaining dis-applications of the limitation period, particularly where witnesses or documents are no longer available. Claims against social services departments for failing to prevent abuse by non-employees fall into this category. Examples of unsuccessful claims include TCD v Harrow [2008] EWHC 3048 and Albonetti v Wirral MBC [2009] EWHC 832. Secondly, claims alleging vicarious liability have generally met with much more success, at least where the alleged abuser is or could have been available to give evidence. Examples of successful claims in this category include EB v Haughton [2011] EWHC 279 and a number of the Nugent Care Society claims. That said, each case must depend on its own facts. A defendant in a vicarious liability claim may be prejudiced on other issues apart from whether the abuse occurred: for instance in JB v Nugent Care Society (one of the cases heard sub nom B v Nugent Care Society) the Court of Appeal held that the difficulties of disentangling causation and proportionality were factors that the judge was entitled to take into account in refusing to exercise the discretion in favour of the Claimant.