Limitation of Actions Consultation - Law Commission

provision. 48
We also discuss whether there should be any discretion to override a
long-stop. 49
If a long-stop provision is adopted and it is intended to apply
uniformly to all causes of action it may in certain circumstances lead to a harsh
result. Clearly, a sexual abuse case may be one situation where such a harsh result
may occur. For example, there may be a case where the defendant could not
reasonably discover the cause of action by the time the long-stop period has run its
course. This is an inevitable consequence of a long-stop limitation period.
However, as discussed above 50
our provisional view is that the benefits of a longstop
period outweigh the disadvantages. After a certain period of time, it is no
longer possible to give a fair trial to disputes. The decision of the European Court
of Human Rights in Stubbings v United Kingdom 51
suggests that the application of a
time bar to a sexual abuse claim is not of itself unjust.
(iii) Disability
13.36 In some cases, the psychological problems suffered by the victim of sexual abuse
might amount to a “lack of capacity” within our definition of disability, which
would postpone the commencement of the (initial) limitation period (unless,
possibly, there is a representative adult other than the defendant). 52
We have
discussed this fully above. 53
The victim of child sex abuse will also not have a
limitation period running against them until they have reached the age of 18
(unless, possibly there is a representative adult other than the defendant).
13.37 Our provisional view is that our core regime (in essence, three years from
discoverability with a long-stop of 30 years from the date of the abuse and
postponement - unless, possibly, there is a representative adult other than
the defendant - for minority and adult disability) should apply, rather than
a separate regime, to claims by victims of child sexual abuse. We ask
consultees whether they agree and, if not, to say why not.
5 ACTIONS FOR DEFAMATION OR MALICIOUS FALSEHOOD
13.38 The limitation period for defamation actions is currently one year, subject to a
discretion for the court to disapply this limit where it appears to the court that it
would be equitable to allow the action to proceed. 54
These provisions,
implemented by section 5 of the Defamation Act 1996, 55
constitute the second
48 See para 12.102 - 12.104 above.
49 See paras 12.187 - 12.196 above.
50 See paras 12.97 - 12.104 above.
51 (1997) 23 EHRR 213. See para 3.35 above.
52 See paras 12.129 - 12.137 above.
53 See paras 12.118 - 12.125 above.
54 See paras 3.105 - 3.107 above.
55 Inserting new sections 4A and 32A into the 1980 Act, following the recommendations of
the Supreme Court Procedure Committee (“the Neill Committee”) Report on Practice and
Procedure in Defamation, July 1991. See para 1.16 above.
335