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A civil claim for financial compensation often runs hand in hand with criminal proceedings. Whether you are a victim of sexual abuse or an individual defending such allegations, you may need legal advice. Civil claims for abuse are personal injury claims and include both physical and psychiatric injuries.
No, there is no requirement in civil claims for a criminal prosecution to have commenced or succeeded. Claims can be made in parallel with criminal proceedings or without prosecutions being instigated or proved.
In criminal prosecutions the case must be proved “beyond reasonable doubt” – in other words a jury must be “sure” that the abuse happened. In civil claims the court need only be persuaded to the lower standard of “on the balance of probabilities”, which means that it was more likely than not that the abuse happened.
It is therefore very hard to defend a civil claim if the defendant has been found guilty of the abuse by a criminal court. It can also mean that even when someone is acquitted by a criminal court, it might still be possible for a successful civil claim to be brought.
Claims can be made against the person who committed the alleged abuse or against those individuals or organisations which are vicariously liable for their actions. For example a school because it has some responsibility over its staff members. This will depend on the particular circumstances of the case.
We work hard to settle cases out of court whenever possible. This involves negotiating with the other side’s legal representative to reach a fair and just outcome. Every case is different and needs to be considered on its own circumstances. If proceedings are issued in the civil courts, then you may be able to apply for anonymity.
These include general damages (for pain, suffering and loss of amenity) and special damages for past and future losses. General damages are determined by previous case law and Judicial Guidelines.
The injury can be physical, or purely psychological, and the most severely injured claimants can expect damages of up to about £100,000.
Where the case is concerned with a child who was too young, at the time, to consent to a sexual act, he or she can claim damages as of right, without having to prove injury.
Victims can also claim for special damages. This will depend on the circumstances of the case and include past and future losses. Past losses relate to expenses that a victim or their family incurred that they would not have incurred but for the sexual assault. This could for example be the cost of seeking therapy or having to relocate. Future losses are those that will arise because of the injury such as future loss of earnings and the costs of future therapy.
In broad terms, damages are supposed to be compensatory, but in some exceptional circumstances, a claimant can seek “aggravated damages”. These are available when the circumstances in which the injury was caused, or the conduct of the defendant during and after the injury, were particularly unpleasant. For example, cases involving victims who were held against their will, and subjected to repeated sexual assaults.
Claims should be brought within 3 years from the date of the abuse, or from the date of knowledge of the abuse. However, the courts have discretion to extend the limitation period in certain circumstances and the law recognises that in cases of traumatic abuse it can sometimes take years for claimants to be able to bring a claim.
If the abuse occurred while the individual was a child, then the limitation is 3 years from the child’s 18th birthday. Again, this limitation period can be extended in certain circumstances.
Limitation is most often extended in cases involving institutions – for example where people who are now adults were abused as young children, and only feel able to bring a claim following public exposure of wide scale abuse in the institution that they lived in. For other types of cases, particularly in a non-institutional setting, the courts have a more difficult balancing act. For example, where a claim concerning childhood abuse is brought by a middle aged person against an individual, and where the events complained of took place 30 years ago. The court will have to balance fairness for the claimant, who might be saying that he or she is traumatised, with fairness for the defendant, who might have no recollection of the claimant or the facts, and be prejudiced by the long period of delay.
Another way of obtaining compensation is by applying to the Criminal Injuries Compensation Authority (CICA), a government funded scheme that can compensate victims according to a list of tariffs based on the type of injury sustained. This is generally a one-off payment in compensation for the injury sustained and does not relate to past or future losses. Whilst it is possible to make an application to the CICA in parallel with a civil claim, if a claimant is later awarded compensation through a successful civil claim they will most likely be asked to repay the amount awarded through the CICA scheme to avoid double recovery.
Kingsley Napley is experienced in bringing and defending civil claims and criminal prosecutions relating to sexual abuse. For more information, please contact the criminal or personal injury team on (0)20 7814 1200.
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