Under UK law, a person who has suffered injury has three years from the date of the injury, or the date that they became aware of that injury (the date of knowledge) in which to pursue a claim for damages arising from that injury.
The position is more complicated when it comes to cases involving historic child abuse, given that the abuse quite often has occurred substantially longer than three years ago. Jordans were instrumental in bringing about a change in law in the UK courts in relation to limitation in child abuse cases, with the Courts now having an “unfettered” discretion as to whether to disapply the three year limitation period and consider the claim for damages on its merits rather than disallow it on a technical point of law.
Following a consultation with the Association of Personal Injury Lawyers (APIL) in 2012, the Scottish Government has previously announced its intention to increase the limitation period for personal injury claims from three to five years. However, they believe that cases involving survivors of historical child abuse merit a different approach to the application of the limitation regime. APIL is currently preparing its response to the proposal to remove completely the limitation period for personal injury claims for historical child abuse.
The consultation is open until 18 September 2015 and has asked for views as to:
- whether the limitation period should be removed;
- what the definition of “a child” should be;
- what types of abuse should be covered;
- whether the exemption should apply to all historical child abuse rather than just those abused “in care”.
Christine Sands, Head of the Child Abuse Department at Jordans comments “Despite recent changes in its interpretation, the application of the Limitation Act in the UK remains a formidable obstacle for victims of historic child abuse. Often the abuse itself is responsible for their failure to come forward sooner with their civil claim but despite this they are subject to the same personal injury limitation rules i.e. the primary time for making their claim expires when they reach 21.
“Current law requires them to call upon the court to exercise judicial discretion in their favour to proceed with their claim if they are out of time and outcomes are often unpredictable. Exempting victims of historical child abuse from the operation of the Limitation Act , in carefully defined circumstances would promote consistency and certainty for those considering making such a difficult claim.
“It will be of great interest to see what the Scottish Government decide and whether England and Wales will feel compelled to follow suit.”