I introduction

B Effect of Limitation Periods in Institutional Child Sexual Abuse
Numerous cases illustrate the potency of the limitation defence and the frequency with which it is employed against plaintiff survivors of childhood sexual abuse.²³³ In Ellis v Pell²³⁴ the plaintiff was successful in obtaining an extension of time in which to sue the second defendant.²³⁵ Mr Ellis was required to provide much detailed evidence of his psychiatric injury and he was cross-examined for more than three days during the hearing.²³⁶ The cases illustrate how arguments about limitation periods can be hard-fought by defendants and distressing for claimants. It is also clear that the institutional childhood sexual abuse cases offer little guidance as to the likely outcome.
The impact of statutory limitation periods on child sexual abuse cases is disproportionate to other civil claims because of the particular circumstances of adult survivors of child sexual abuse who so often are unable to disclose their abuse or to seek compensation for many years afterwards. Further, the psychiatric injuries caused by the abuse are the very reason that the survivors have been unable to commence proceedings earlier: effectively the defendants are a significant cause of the delay. In very many cases of institutional child sexual abuse, adult plaintiffs will need to make successful applications for extension of limitation periods before any issue in the substantive causes can be tried.²³⁷ The process is expensive, uncertain, carries a high risk of an unfavourable costs order and takes a further emotional and psychological toll upon a likely already fragile plaintiff survivor.
A common argument against removing limitation periods entirely is the risk that delay will prejudice the ability of a defendant to defend proceedings where critical evidence has been lost or key witnesses are no longer available. Yet, the removal of the limitation period would not abrogate the statutory power of courts to stay, by order, any proceedings before the court, either permanently or until a specified day.²³⁸ Supreme courts have inherent power to stay proceedings which are an abuse of process²³⁹ permanently where there cannot be a fair trial due to delay in commencing the proceedings.²⁴⁰ This inherent power of the courts mitigates any concern about disadvantage to institutional defendants.²⁴¹