Traditionally, cases involving sexual abuse, in particular, are often brought many years later. The legal system is not overly sympathetic to injury victims generally and there are restrictions as to who can take a case forward and to the time period within which the claim must be issued at court. If someone issues outside of that time, the risk is that the case will be struck out. The court however has a discretion and can choose not to apply the time limits in appropriate circumstances.
However, despite the general lack of sympathy from the courts, there have been many cases in which the discretion has been exercised in favour of survivors of abuse. Many of these survivors suffered abuse years if not decades before a claim is brought. In more recent years there has been a tendency to assume the court will permit this.
There is, however, no guarantee that that will occur and in an environment where more cases of abuse are coming forward, there will be a larger number of claimants who are not successful in persuading the court to disregard the time limits.
This came up recently in the case of GH v The Catholic Child Welfare Society. There are clearly a number of cases involving The Catholic Child Welfare Society and they sought at the hearing to determine whether their opposition to time limits being waived would be successful. A battle over the issue (known as limitation) is common enough. However in this case the judge reiterated what the legal position actually is, as opposed to what people tend to think it is.
The barrister for the claimant submitted that the time limit should be waived in part because the alleged sexual abuse was simply was an awful thing to happen. Clearly, the argument was that the defendants were morally responsible for the event. In the exercise of discretion, the court should therefore consider that the crimes and events outweighed in some way the fact that the time limit had passed.
The court, however, was not convinced at this point. Although the alleged perpetrators were potentially morally culpable and indeed the Catholic Child Welfare Society could even be criticised for the way they have investigated the allegations, the court was not convinced that this was sufficient to change the position legally.
The court considered that there was no reasonable explanation for the delay in taking the claim forward in this case. Despite the circumstances of a case being horrific, it is important to know that any delay must be explained,
In most cases, it is the circumstances of the abuse that have led the claimant to be unable to consider taking a case. Often people are left with psychological scars which mean it is more difficult for them to consider reopening those wounds. In this particular instance, the court was not convinced of this and indeed the medical experts did not seem to take that view either. It seemed that they thought the catalyst for legal action was simply that the claimant found out about claims being made, not that he only now felt able to deal with a claim.
The time limit for a negligence claim is three years and the time limit for an assault claim is six. For the vast majority of cases, the perpetrator who committed the assault is not in sufficient funds to warrant taking the matter further. Therefore, it is usual and more practical to make a claim against their employer or the organisation in which they worked. It is important to note, however, that there is no guarantee that the limit for time will be extended. There has to be a good explanation as to why there had been a delay, particularly when that delay had been many years or, as is often the case, decades.
These issues are likely to arise more now that there are additional cases of abuse coming forward as there is an increased understanding generally.
Claimants are advised, therefore, that if they have been a victim of sexual abuse, particularly involving an institution or organisation, they should contact solicitors as soon as they are able in order to see whether there is a claim that can be taken forward and whether it is likely that the court would exercise discretion in their favour.