Legal milestone for abuse victims

There is little doubt that the Lords judgment is a highly significant one - even a landmark.
But it is unfortunate that media discussion has tended to be dominated by the case of the so-called "Lottery rapist", Iorworth Hoare, because the impact is likely to be far more profound on the other class of case - claims for compensation for sex abuse committed many years before.

As Lord Hoffmann says in his lead judgment: "People who commit sexual assaults are seldom worth suing." And Mrs A brought her action against Hoare only after she heard he had won the lottery.

Thus, it is unlikely that we will now see a spate of claims brought by their victims against rapists and sex attackers.

But the position of people who claim that they were abused as children in homes and institutions has immeasurably improved. This is because the law at the moment requires a court to take account of their "state of knowledge" when deciding if they have a legitimate claim for negligence.

'Dragging on'

In other words, they have to establish when they realised that they had suffered a significant injury as a result of the abuse. In the case of claims against homes run by Catholic charities, for example, this has proved a considerable obstacle and many cases have been bogged down in years of unproductive litigation.

The Lords ruling means that courts will now be able to use their discretion when deciding what it called cases of "systemic negligence".

Solicitor Paul Durkin, of the specialist firm, Abney Garsden McDonald, is representing 120 claimants in three class actions against charities which ran homes where sex abuse is alleged.

"My phone has hardly stopped ringing since this judgment," he says. "Two of these cases have been dragging on for 11 years because the defendants - the charities - have been arguing that the actions are out of time. "But I believe that the Lords ruling will encourage them to settle now because my clients have a far better chance of proving negligence."

Taking heart

The Lords themselves gave an example where the present law produced a bizarre anomaly. In 1995, a woman sued both her father and mother for sexual abuse committed by the father.

The action was begun almost 10 years after the last act of abuse and was struck out on the grounds that too much time had elapsed. The case against the mother was based on negligence and was allowed by the court using its discretion.

It was this anomaly which persuaded the Law Commission to examine the issue in 2001, producing a report which called for law change which was never implemented by the government because it had wider implications for the limitation on legal actions.

Although there is likely to be a greater willingness by defendants to settle as a result of this judgment, some will, no doubt, continue to argue that they are disadvantaged in having to counter claims of abuse allegedly committed years, perhaps decades, before. The balance has certainly changed - and survivors of childhood abuse will be taking heart from that.

BBC News, 30 January, 2008.