The Independent Inquiry into Child Sexual Abuse (“IICSA”) recommended last year that the Association of British Insurers (“ABI”) puts together a codes of practice which :-
“include guidance that:
- claimants should be treated sensitively throughout the litigation process;
- the defence of limitation should only be used in exceptional circumstances;
- single experts jointly instructed by both parties should be considered for the assessment of the claimants’ psychiatric, psychological or physical injuries; and
- wherever possible, claimants should be offered apologies, acknowledgement, redress and support.”
On 17th August 2021 the ABI followed this recommendation by publishing its new guidance to insurers which handle child abuse claims. There is a link to the guidance at the end of this post.
I had the immense fortune of representing Prof Julie Macfarlane in 2016 in her claim against a church in Sussex. As part of the case she was so appalled by her treatment by the insurer that we built into the settlement a negotiation around how the insurer involved, EIG, would handle future cases to minimise distress to claimants. The EIG “guiding principles” were born in 2017 and the new ABI guidance substantially follows those principles.
The guidance now applies to all insurer members of the ABI and insurers are encouraged to spread this good practice to non-members and self-represented Defendant organisations.
The only fly in the ointment is paragraph 4.2.5 which states;
(Raising limitation in exceptional circumstances) could be achieved by – “Only raising limitation as a defence in exceptional circumstances, which may include where they reasonably believe that on balance a court would not dis-apply limitation because a fair trial would not be possible.”
This allows insurers and their solicitors to interpret the guidance as business as usual (ie to pursue common law rules on limitation as far as possible to defeat a claim). I am fairly sure the parties agreeing to this guidance didn’t plan to pursue such a retrograde course of action but we will have to monitor whether the various insurers and solicitor representatives use this clause as a weapon to maintain defences of limitation as aggressively as they have in the last 20 years.
In my opinion the encouragement of meaningful apologies is a really positive step. Many clients most of all want recognition, acknowledgement and an apology. As the guidance says – apologies can be just as important as compensation.