The following blog was provided by Grace, a paralegal at BBK, working for survivors of abuse in civil law.
For many survivors of abuse, taking legal action can be an important component of their pursuit of justice and journey towards healing. However, some might not know where to begin, and the process itself can seem daunting.
A good first step is understanding what your legal options are, and the differing procedures and outcomes of each.
This blog will primarily discuss the key differences between an application to the Civil Injuries Compensation Authority (CICA) and a civil claim, and includes a brief overview of each legal route.
Criminal prosecution
There are three main legal routes you can take after abuse. You are likely already aware of the first, which is a criminal prosecution.
The first step in pursuing a criminal prosecution is reporting the abuse to the police, which you can do at any time. The police should then investigate the offence, and the CPS will decide whether to prosecute the abuser based on the outcome of this investigation.
If the abuser pleads guilty, or the prosecution is able to prove their case beyond reasonable doubt at trial, the abuser will be convicted and sentenced, often to jail time.
Other penalties, such as Sexual Harm Prevention Orders (SHPOs), may be imposed in addition to jail sentences, and the abuser will likely become subject to sex offender notification rules. If you’re interested in learning more about this path, you can do so here.
A criminal prosecution can help to achieve retribution against the abuser and the protection of the abuse survivor and wider society. However, it cannot achieve any financial compensation for the abuse survivor, which is the outcome of a successful application to CICA, and one of the possible outcomes of a successful civil claim.
CICA
CICA – which stands for the Civil Injuries Compensation Authority – is a Government-funded body that allows victims of violent crime, including sexual abuse, to apply for compensation.
In order to make an application to CICA, you must report the abuse to the police. Additionally, there is a time limit for when you can make an application.
For those abused as adults, this is generally within two years of the time of the abuse. Those abused as children must generally make an application by their 20th birthday if the abuse was reported to the police before their 18th birthday, or within two years of the first report to the police if not.
However, the time limit can be extended if it can be shown the application could not have been made earlier and could still be determined without extensive further enquiries by a claims officer.
If you are within the time limit, or successful in having it extended, your application will then be determined on the balance of probabilities. This means your application will be successful if it is determined that the abuse more likely than not occurred. This is a much lower burden of proof than in a criminal prosecution, where the prosecution must prove their case beyond reasonable doubt.
If your application is successful, you will be awarded a fixed sum, subject to a statutory limit of £500,000, to compensate you. You can be compensated for the crime itself, any mental or physical injuries caused by the crime, any loss of earnings you have suffered due to the crime, and special expenses you have incurred, such as treatment costs.
However, it is important to note that, while you can make an application to CICA without a lawyer, if you do decide to instruct lawyers to help you with your application, you will not be able to recover your legal costs.
A successful CICA application can therefore help to remedy any financial hardship the abuse has caused you, putting you in a better position to move forward with your life, but will not cover your legal costs.
Civil claims
A civil claim is a claim brought in the civil, rather than criminal, courts. A claim brought after abuse would involve suing the abuser in person, or the institution responsible for them, such as a school or care home, for financial compensation or other non-financial remedies.
It is important to note that you are not prevented from pursuing both an application to CICA and a civil claim. However, you cannot be awarded twice for the same injury, and so you would have to pay back any sum awarded to you under CICA if you were subsequently awarded compensation through a civil claim.
Unlike with an application to CICA, reporting the abuse to the police is not a requirement for bringing a civil claim, although the experts at Bolt Burdon Kemp may advise you to do so if you have not already. There are, however, similar time limits in place.
Generally, you must bring a claim for compensation within three years of the abuse, or, if you were abused when you were a child, by your 21st birthday.
However, for many abuse survivors, this is not possible. There are a multitude of reasons why an abuse survivor might delay disclosure, such as fear of retaliation from the abuser, concerns about not being believed, and worries that learning of the abuse would cause loved ones pain. If you have delayed disclosing your abuse, and so are technically out of time for bringing a claim, you would not be alone. A study showed it takes an average of 26 years for a victim of abuse to come forward and disclose what happened to them.
Fortunately, the time limit can be disapplied if a fair trial is still possible and there has been good reason for delay. As previously discussed, there are many good reasons an abuse survivor might delay bringing a claim, and the experts at Bolt Burdon Kemp are very experienced in persuading the courts to set aside the time limit for these reasons.
If you are within the time limit, or succeed in having it disapplied, you will be able to proceed with your claim. Similarly to applications to CICA, your case will be determined on the balance of probabilities. Again, while it is still necessary to prove the circumstances of your case, this is a much lower burden than in the criminal courts.
If your claim is successful, you will usually be awarded financial compensation, referred to in civil claims as ‘damages’.
This could include general damages to compensate you for the abuse itself and the mental and physical injuries caused by the abuse, as well as special damages to compensate you for financial losses you have incurred to date or will incur in the future because of the abuse, such as loss of earnings.
Unlike the compensation awarded under CICA, there is no limit on the amount that can be awarded in a civil claim, and awards are generally much higher. Additionally, it is possible to recover the legal costs you have incurred in bringing the claim.
In addition to financial compensation, other non-financial remedies may be awarded in a civil claim. These can include an acknowledgement that the abuse happened and an apology, which can sometimes be the most important thing for abuse survivors.
Where the claim is brought against an institution, changes in safeguarding practices and reporting processes might be also agreed. In this way, a civil claim can not only financially compensate you for some of the harm you have suffered, but it can help to protect others in the future.
Next steps
Disclosing abuse and taking legal action are always significant and courageous steps for any survivor to take.
If you have been subjected to abuse and are considering your legal options, you can contact the Abuse Team at Bolt Burdon Kemp. Our experts will listen to you and give you free and confidential advice to help you decide which route, or combination of routes, might be right for you.