Over the course of three weeks in November and December last year (with a sweep up additional day in January) the IICSA Chair and panel heard evidence from victims and survivors, their solicitors, insurers and their solicitors, local authorities, various police forces and other interested parties as part of the Inquiry’s Accountability and Reparations (A&R) investigation.The scope of this investigation is to inquire “into the extent to which existing support services and legal processes effectively deliver reparations to victims and survivors of child sexual abuse (CSA) and child sexual exploitation (CSE)”. In November 2016 the Inquiry team held a number of seminars on the civil justice system following the receipt of 53 submissions from interested parties.
The recent public hearing was designed to explore these issues further through the close examination of five case studies arising out of CSA allegations, civil claims and in some cases, litigation from North Wales children’s homes, Forde Park Approved School, St Leonard’s children’s home, St Aidans and St Vincent’s children’s homes and the Stanhope Castle Approved School. The Inquiry focused particularly on the following themes:
- What amounts to adequate reparation including what weight should be attached to the right to an independent impartial investigation, the right to truth, accountability, compensation, guarantees of non-recurrence and support services;
- To what extent support services, the civil justice system and/or alternative compensation frameworks have delivered each of these elements to victims and survivors, including consideration of:
- The adequacy of support services provided by public, private and charitable organisations.
- The extent to which the current civil litigation framework may have obstructed the delivery of some or all elements of reparation.
- The extent to which the current model of insurance, and/or the practice of insurance companies, may have obstructed the delivery of some or all elements of reparation.
Victim Survivor Core Participants
The general themes from the victim / survivor core participants were as follows:
Many representatives were in favour of the limitation defence in child sexual abuse claims being abolished. It was said that it is often the very nature of child sexual abuse that prevents the survivors from making a disclosure within three years of reaching majority. Given the current understanding around the reasons for delayed reporting of abuse, the limitation defence is outdated. The legislation was drafted 40 years ago and does not correspond with the modern understanding as to the effects of child sexual abuse.
Limitation was described as a ‘weapon’ that defendants will use in order to place obstacles in the way of claimants either to defeat claims entirely, or to pay a lower amount in settlement of such claims. It was also claimed that limitation is used as a defence because it is more palatable to a judge to find for a defendant on limitation, rather than any direct challenge as to whether the abuse has taken place or not.
The victim and survivor core participants were critical of insurers’ responses to these claims. It was felt that insurance companies are solely concerned with finances and no consideration is given to the moral and ethical considerations when dealing with abuse claims. It was said that success is a ‘lottery’ for claimants and it can depend on the insurer as to whether a claim is settled or not.
The importance of apologies to survivors was underlined and it was not accepted that the Compensation Act 2006 is unclear as to apologies in vicarious liability cases which was a point made by many of the institutional core participants.
There were criticisms as to the timing of the apologies that were given. That they were given too late and many years after the abuse and subsequent claims had taken place. Many apologies were given by institutions for the first time during the course of the hearing.
Civil Litigation and Redress Schemes
Many claimant representatives were critical of the civil litigation process and highlighted the difficulties it caused in terms of time, tactics and expense in allowing victims and survivors to access compensation and other forms of redress. Many advocated in favour of redress schemes, the form of which varied between representatives.
Criticism was made of the lack of protection for vulnerable witnesses having to give evidence in civil trials and the Chair was encouraged to make recommendations that the protections provided to witnesses in criminal trials were extended to the civil process in cases of CSA.
Institutional Core Participants
Turning now to the general themes from the institutional/corporate core participants:
It was not accepted that limitation was used as a weapon but instead as a valid defence. When a limitation defence is raised, the court addresses the balance of injustice between the claimant and the defendant. The defendant will have to prove that it has been prejudiced by the passage of time and needs to provide evidence of the attempts made to locate documents and witnesses. The point was made that the removal of a limitation defence would not only affect insured institutions but also uninsured institutions and individuals or an uninsured individual’s estate.
Limitation is often raised at the start of a claim, however this is not to deter claimants but to put them on notice that limitation is an issue. It was a common view that it is best to raise limitation at the beginning of a claim so that the claimant is aware of that at the outset, rather than at a later stage. It was denied that limitation was used simply as a strategy to achieve lower settlements.
Many of the core participants were insurance companies and so approached apologies on the basis that they had no issue if their policy holders wished to provide apologies. This was a matter for the policy holder.
A recommendation was made to the Inquiry panel for clarification of s2 of the Compensation Act 2006 and how that relates to apologies where the defendant is vicariously liable for the acts of a third party.
It was noted that not all victims and survivors want or appreciate an apology and that this was a sensitive issue.
The Inquiry indicates via the website that its report into the investigation will be published “in due course” but during the hearings the Chair mentioned “the summer of 2019” and it is expected that there will be a further series of seminars at the end of the year.
Author Michael Pether, Partner