There is a time limit on starting civil proceedings.
For all compensation claims legal proceedings have to be started within 3 years for negligence and 6 years for assault. Time doesn’t run for children until they are 18 so strictly time runs out at either the age of 21 or 24. This means that an abuser under the present law escapes all liability at civil law after the victim reaches the age of 24. This is thus a law which is tantamount to encouraging the suppression of disclosure by the victim through intimidation or the like, which is all too common in these types of case.
Therefore in child abuse cases, time starts on the victim reaching the age of 18. In the case of negligence, the case must be started before the victim is 21, in the case of assault before s/he is 24. There are attempts to change this in the case of child abuse, but, for the moment, anyone who is over 21 or 24 cannot bring civil proceedings relating to abuse that happened before the age of 18.
HAVOCA believe this law to be unfair, in some Canadian states there is no time limit at all for claims of child abuse. The suggested change in the law has been brought about because it was disapproved by the European Court of Human Rights in a case called Stubbings v United Kingdom (1997).
Civil proceedings will not usually punish the offender but will make an order for payment for pain and suffering, loss of earnings, costs of treatment etc. It is a step victims might want to take against the employer of an abuser who abused the position of trust such employment gave him (e.g. Religious organizations, education authorities, social services etc). It is also possible to do this in addition or instead of criminal proceedings. The standard of proof is much lower than in criminal cases. The court decides on the balance of probability – it’s more likely than not that one side’s version of events is correct, rather than being absolutely convinced. Although anyone can start civil proceedings, it is very advisable to have a lawyer (ACAL will help). S/he will need to be paid either by yourself or through Legal Aid, if you’re eligible for this.
Procedure
You will be called the plaintiff, the abuser/organisation will be called the defendant. Your solicitor will take a statement from you and will draft an affidavit – a sworn statement, which you will then be asked to swear to, usually in front of another solicitor.
S/he will also collect other evidence on your behalf, e.g. social services reports, statements from witnesses, medical reports etc.
At the same time, a writ will be issued which will state your case and will be served on the defendant. It is important to remember that all evidence is available to the defendant, and that all the defendant’s evidence is available to you before the hearing. This is to enable people to settle before the court hearing and save costs.
There may be a number of pre-trial hearings relating to evidence and other matters. Some of these you might have to attend. They usually take place in front of a judge with either side presented by their solicitors or barristers.
Civil trials are tried in front of a judge. It is s/he who makes the decision based on the evidence before them. You and other witnesses will have to give your evidence and are cross-examined.
When all evidence has been presented, the judge will make her/his decision. If the court decides in favour of the plaintiff, they will usually make an award of money. The ‘losing’ party is generally ordered to pay the legal costs of the ‘winning’ party. However, each party is initially responsible for their own costs. Civil proceedings can be extremely expensive.