ABI publishes child sexual abuse claims code in response to inquiry

The Independent Inquiry into Child Sexual Abuse set out in its 2019 interim report into accountability and reparations for survivors of child sexual abuse that some found the criminal and civil claims processes “hostile, baffling, frustrating and futile”.

Survivors have described the civil claims process as “reabusive”.

In its report IICSA recommended that the association devise a code of practice for members handling such claims, covering the topics of sensitivity, limitation defence use, expert witnesses, and apologies, redress and support for survivors.

The ABI’s code, which has been almost two years in the making, was devised by a working group of nine firms that handle CSA cases. Elements of it draw on principles set down in insurers’ internal CSA codes and the guidance is intended to “complement” rather than replace these, the document states.

Not covered by the code are non-member firms, which could include legacy providers that have bought books of business or organisations defending claims without the backing of an insurer.

Key commitments

Included in the ABI’s code are: a commitment to never run limitation arguments except in “exceptional” circumstances; a provision that insurers should seek to agree on one joint expert witness when handling CSA claims or to ask questions of a witness selected by the claimant; a pledge that insurers will not prevent policyholders from apologising to claimants, and stipulations that it may be appropriate to offer interim payments to claimants who require them for support needs.

Also addressed is language used by claims handlers, which the ABI sets out should be “neutral” even where a point is contended. And on training, the ABI firms committed to ensuring claims handlers have “appropriate skills, training and capability to treat those claims with empathy and sensitivity”. Post has previously reported on survivors’ concerns around “callous” language being used, as revealed via data subject access request, by insurer staff around the case of an abuse claimant.

The ABI has committed that members will never run consent arguments where claimants were under 16 at the time the alleged abuse took place.

They will also not seek to block clients from apologising to abuse survivors. Further addressed, outside the scope of the inquiry’s recommendations, is a pledge that insurers will never require confidentiality agreements as a condition to settle an abuse claim and will “actively discourage” policyholders from pursuing these.

Christopher Armistead, ABI assistant director, head of legal services, explained that the trade body saw the code as an “opportunity to address other issues”, of which confidentiality is one.

Armistead said: “The use of confidentiality agreements is something that has been raised in the past and we felt it important to address and clarify insurers’ approach to these – that they will never insist on confidentiality as a term of settlement of a civil child sexual abuse claim – in the code.” 

The code will be reviewed periodically, Armistead confirmed, with further consideration given to its content and scope. He did not comment specifically on whether this could include extending the code to cover abuse and neglect cases.

Limitation

The code has been welcomed by specialist child abuse lawyers, with Association of Personal Injury Lawyers members describing it as a “positive step forward”.

They suggested that further work could be done to clarify “exceptional” circumstances around limitation arguments, which are not defined in the code, but stressed that criticism should not be seen as making a “negative” of the steps taken.

According to Armistead: “The law and courts recognise that there may be situations in which, due to the passage of time, a fair trial is not possible and that limitation should not be disapplied. Although insurers expect that in the majority of child sexual abuse claims limitation will not be an issue, and will never use limitation as a tactical defence, we felt it was important to retain a similar mechanism to the law’s approach in the code.

“The use of limitation will be specific to the circumstances of the case so we didn’t think it would be appropriate to define what an exceptional circumstance might be. Insurers will be guided by the approach taken by a court to determine whether limitation should be disapplied.”

Limitation defences in CSA cases were disallowed in Scotland in 2017.

Richard Sweetman, Apil child abuse special interest group secretary, said: “The proof will be in the pudding really, as to how defendants alter their practice and how often they would actually be raising limitation as a defence. We’d have liked to see it go as far as a commitment not to run limitation defences and to support, as in some other jurisdictions, removing the limitation defence in these claims.”

Monitoring

Dr Julie Macfarlane, a dispute resolution expert and professor at the Faculty of Law of the University of Windsor in Ontario, Canada, who went through the claims process herself in 2016 and was a key stakeholder in drafting guiding principles for insurer Ecclesiastical as part of her settlement process, went further.

“If that evidence isn’t going to stand up to scrutiny that will come out in the course of the settlement process or in the course of a trial. The limitation ban has always been completely nefarious and just a way of closing people down,” Macfarlane set out.

Adding: “[There] needs to be a complete bar on the limitation defence, because the courts are gradually taking it away from them anyway. And there is a process by which you can test evidence, so you don’t need to preemptively close it down.”

Macfarlane also called for compliance monitoring of insurers’ adherence to the code.

“Without a real monitoring system, [compliance is] very difficult to ensure,” Macfarlane commented.

The ABI is not a regulatory body meaning its enforcement powers are limited, it is understood, but Armistead highlighted that its protocols were “unanimously supported by a senior committee of ABI firms which write general insurance”.

Consent

Apil members also flagged consent defences for over 16s as one area they would have liked to see insurers take a firmer line on. The code does note that “a significant power imbalance between the victim of abuse and the abuser” can exist where claimants are over 16, with insurers expected to “consider very carefully” whether such a defence is appropriate.

Apil member Luke Daniels said: “There’s no commitment not to run a consent defence when you’re in that period between 16 and 18, where many people might still be in education or still in care establishments. So it does acknowledge that they’ll bear in mind the influence that perpetrators may have, but it doesn’t have the same commitment as under sixteens, which we might have liked to see it have.”

Pre-action protocol

The Apil spokespeople pointed out that they, and survivors, would be willing to engage with the ABI on a pre-action protocol that would set out necessary steps taken prior to court proceedings. A draft protocol was developed by insurers in 2017, with a sub-committee of the Civil Procedure Rules Committee formed to advance this in 2018.

Armistead acknowledged: “We continue to encourage progress but it is ultimately now for the subcommittee to take forward, as they have the powers to implement protocols. We think it important that once the subcommittee is formed and work is underway, they consider the perspectives of victims and survivors.”

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