Commentary
'Lotto rapist' sex attack victim wins right to sue
Parliament surely cannot have intended to exclude the victims of deliberate assault from the new rights it gave other victims in 1975, one of the country's senior judges has said.
Lord Brown thought it "inconceivable" that MPs had intended to exclude people who had been intentionally injured when the law was changed to help those who had been harmed merely through someone’s carelessness. And the benefits Parliament gave those victims in 1975 were considerable.
Claimants injured through "negligence, nuisance or breach of duty" still had to lodge claims within three years of an accident, instead of the six years allowed for other types of claim.
But those three years could be calculated from the date on which the claimant first knew – or should have known – that the injury was "significant". And that could be some years after the infliction of the injury.
More important still, section 33 of the Limitation Act 1975 allowed the court to extend that three-year period when a judge thought it would be "equitable" to do so.
Mrs A, victim of the so-called "Lotto rapist" Iorworth Hoare, wanted to take advantage of this exception.
Of course, she could have taken legal action against Hoare during the six years after she was attacked. But Hoare was not worth suing until he won the lottery – and one of the law lords yesterday thought it would be "most unfortunate" if claimants had to sue impoverished defendants "just in case".
Now that Hoare was a millionaire, Mrs A argued, it was only fair that she should be able to sue him for indecent assault.
Many people would agree. But this was not the law – until yesterday. Who said so? The law lords themselves, in a case called Stubbings v Webb.
The House of Lords had decided in 1973 that cases of deliberate assault, including acts of indecent assault, were not "negligence, nuisance or breach of duty" and so not covered by the three-year extendable limitation period. Once your six years were up, that was it.
Under our system of precedent, decisions of the higher courts bind the lower courts. So the High Court and the Court of Appeal were powerless to overturn Stubbings v Webb. But the law lords – at the top of the pyramid – are different.
Since 1966, they have taken the view that they can overturn their previous decisions if they think they got the law wrong first time round.
None of the law lords who sat yesterday would have minded doing this if it was what the justice of the case demanded. But how were they going to manage it?
Lord Hoffmann, the senior of the five judges who heard Mrs A’s appeal, explained.
When Parliament used the terms "negligence, nuisance or breach of duty" in 1975, it must have intended them to mean what courts had understood them to mean previously.
The words had been given a broad meaning in a wartime case involving a negligently-piloted RAF plane, in a motoring ruling from the Australian state of Victoria and in another case of negligent driving decided by Lord Denning in 1965.
"Negligence, nuisance or breach of duty" was understood to cover intentional injuries. Therefore, said Lord Hoffmann, "it would be right to depart from Stubbings and reaffirm the law laid down by the Court of Appeal" in the case decided by Lord Denning.
The other law lords all agreed. But that is not the end of Mrs A's story. She can now take advantage of the exception allowing claimants to bring a late claim if it is equitable to do so. But she will now have to satisfy a High Court judge that it would be fair to sue in her particular case.
I don't imagine this will be much of a problem for her. The normal six-year time limit for most civil claims goes back nearly four centuries to the Limitation Act.
It still serves an important purpose: people are entitled to conduct their business affairs secure in the knowledge that they will not have to meet financial claims many years after a transaction has been completed.
But there would be no unfairness to Hoare if Mrs A were allowed to sue him now. It's not just Mrs A, of course.
Alongside her case, the law lords heard several other claims that had also been blocked by the ruling in Stubbings v Webb.
They were unrelated cases brought by young men claiming they had been sexually abused during the 1980s while they were pupils in schools managed by councils in Middlesbrough, Suffolk and the London Borough of Wandsworth.
In one case, the claimant did not tell anyone about the abuse until more than six years after his eighteenth birthday. In another, where two boys suffered serious psychiatric injuries, they did not bring claims until after the teacher concerned had been convicted more than a decade later.
The law lords found in their favour and removed the block on each of their claims. This was a wise decision. It eliminated a number of anomalies, most dramatically illustrated by a case from 1995.
On that occasion, a woman was not allowed to bring a late claim against her father for sexual abuse. But she was permitted to sue her mother for negligently failing to protect her.
Doing away with absurdities like this was ample reason for the law lords to take the rare step of overturning one of their earlier decisions.
Another reason was given by Lady Hale.
"Until the 1970s," she said, "people were reluctant to believe that child sexual abuse took place at all. Now we know only too well that it does."
But protecting children was difficult, the law lords continued, because perpetrators were often "people in authority over the victims, sometimes people whom the victims love and trust".
The abuse itself was the reason why so many victims did not come forward until years after the event.
As Lady Hale said, "this presents a challenge to a legal system which resists stale claims."
We can now expect to see thousands of claims by people who allege they were abused as children, perhaps many years ago. But Lord Brown had a warning. Not all of these claims will be true.
For there to be a fair trial, a defendant – such as a local authority – must be able to investigate the claimant's allegations.
If the abuser had been investigated at the time – and especially if he had been convicted of attacking the claimant – that would be one thing. But it would be quite another if the claim had come out of the blue.
"By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise [its] discretion in his favour," Lord Brown said.
"On the contrary, a fair trial… is in many cases likely to be found quite simply impossible after a long delay."
Those words are not binding on the lower courts. But they warn us that the courts are not opening the floodgates to unlimited sexual abuse claims. All in all, then, a fair and balanced judgment from our highest court.