Upon conclusion of a claim for damages for the consequences of sexual abuse, an organisation which has been held vicariously liable for the perpetrator of the abuse should give consideration to the possible recovery of all or a contribution to the paid damages and costs from the abuser pursuant to the Civil Liability (Contribution) Act 1978.
The above Act allows defendants to pursue the individual guilty of the wrongdoing for damages and costs within the limitation period of two years once the original claim has concluded (either from the date judgment was given or damages agreed). The right to recover from the abuser is provided regardless of whether the recovering party were held liable or admitted liability in the original action.
The 1978 Act states under section 1(4) that “A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage….shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.”
With the above in mind, once settlement of the underlying claim has been reached, a recovery can be considered. Regard should be had to whether it is more likely than not that the factual basis of the claim would have been established in court. This is an important point, as often an organisation held vicariously liable may be dissuaded from investing money into the cost of a recovery where the abuser has not been convicted of the offence in a criminal court. Notwithstanding the lack of a criminal conviction the organisation is only required to prove that the offence happened ‘on the balance of probability’; this is in comparison with the criminal standard of proof which is ‘beyond reasonable doubt’.
Whilst having evidence of a criminal conviction will often allow the recovery process to be less demanding, this does not mean that the recovery claim will not have the usual challenges that a case with less evidence would face. Challenges can include:
- the death of the abuser;
- the abuser contending that the abuse and its consequences were contributed to by the acts or omissions of the organisation;
- the abuser considering that the claim should have been defended to trial on the basis it was out of time, notwithstanding the case law contradicting such a defence and the economics of pursuing such litigation;
- the abuser may often argue that they lack the funds to contribute to the damages and costs. Careful consideration should therefore be given to the availability of funds to indemnify or contribute as if these do not exist, any successful claim would be no more than an expensive pyrrhic victory.
Challenges aside consideration should always be made of the possibility of a recovery action as ultimately the decision to abuse was that of the perpetrator of the abuse.